담보신탁의 도산절연에 대한 고찰

Use of deed of trust as collateral has been drastically increased in the real estate industry since the 2001 Supreme Court decision that deed of trust is not deemed to be a secured claim in the rehabilitation proceedings. In practice deed of trust is considered to be a convenient and safe security due to bankruptcy remoteness and other benefits notwithstanding the relatively lower cost of creating a deed of trust compared to creating a mortgage. The 2001 Supreme Court decision that deed of trust provides bankruptcy remoteness is aberration from the hitherto decisions to choose substance over form in connection with the issues such as Yangdo Dambo. The Supreme Court decision has caused differing opinions from those arguing that acknowledgment of bankruptcy remoteness of trust deed is invalid in comparison with the Anglo-American trust to considering the decision to be invalid due to dismissal of the distinctiveness of the bankruptcy law that puts substance before form and emphasizes the idea of equitable distribution. Under the trust law, however, in which the separateness or independence of trust property is important it is valid to allow bankruptcy remoteness for deed of trust taking into account the practical difficulty of denying it all of a sudden after widespread use of trust deed in the trade while there is no reason for the trust law to be restricted by the bankruptcy law as they have separate or independent legislative purposes.