체육시설에 있어 담보신탁과 회원권의 승계- 대법원 2018. 10. 18. 선고 2016다220143 전원합의체 판결 -

This Supreme Court decision is the first to hold that the transfer to the buyer of rights and obligations of the seller of the essential sport facilities arising under the membership contracts with the members of the facilities complies with the transfer requirement under Article 23(2)4 of the Sport Facilities Act as they are transferred as part of the transfer in whole of the essential sport facilities due to trustee sale or sale by negotiation under the trust deed entered into according to the Trust Act. There are various main argument points of the majority opinion such as legislative intent and purpose of Article 27 of the Sport Facilities Act, the similarities between trust dee and mortgage from the economic perspective, the balance-of-interests consideration for the protection of the members’ rights, etc. The dissenting opinions also raise equally strong points in objection to the majority opinion. It is, therefore, necessary to analyze the decision for more legal clarity and stability and predictability law involving deed trust. First, the sympathy to the legislative purpose and intent of the Sport Facilities Act to protect the members’ rights does not justify the disturbance of the existing legal regime, unfortunately, contributed by this Supreme Court decision. The majority opinion has valid points, but it shall be limited within the parameters of the existing legal regime. Second, the similarities between deed trust and mortgage from the economic perspective shall not lead to compromise of the raison d’etre of the Trust Act by classifying the deed trust into mortgage only due to the economically collateral function of deed trust if it is clear under the Trust Act that deed trust comes under the category of trust. Third, in case deed trust is a trust under the Trust Act it may be necessary to acknowledge that the trusted property is bankruptcy-remote. The post-decision concern and opinions that notwithstanding the realization of justice in form, this Supreme Court case may cause significant hindrance to future restructuring of, and financing for, golf courses and we need to move more quickly for a supplementary legislation may prove that the Supreme Court decision was excessively obsessed with formal logic only.