담보신탁된 토지에 대하여 위탁자가 체결한 지상권설정계약에서 이행불능의 판단기준과 소의 이익 - 대상판결: 대법원 2018. 11. 29. 선고 2018다37949, 37956 판결 -

The decision relates to the legal relationship of the trust transferring ownership of the trust property to secure the mortgage, and determines how the rights and obligations of those who have legal interests in the trust relationship can affect the trust structure created by the trust. The judgement is based on the nature of the trust that it is not impossible for the consignee to restore ownership of the trust property and to establish ground rights, and that it cannot affect the performance of the contractual obligation. Even if it agrees, it would be necessary to determine whether an entity is unable to perform or profitable by looking at a comprehensive assessment of the act of setting up a trust at the time of setting up a mortgage, the timing and the relationship with the beneficiary. In particular, trust contracts, which transfer ownership internally and externally, are inherently isolated from the legal relationship before the trust, which cannot be enforced or disposed of to preserve the rights held before the trust, and which requires stricter requirements. Depending on the characteristics of trust law alone, such as the independence of trust property and the insulation of bankruptcy, how much of this right relationship can be protected, and how much it should be protected by what requirements is a very difficult. Furthermore, at this time, when the terms of termination, which could only be interpreted as contractual elements, are transformed into terms of termination of trust, specific requirements for restitution of ownership should be clearly established, and a way to protect the rights of a third party at the same time.