타인 채무의 담보를 위하여 신탁을 설정한 위탁자의 지위

When a security trust is constituted, the property transferred by the settlor and held by the trustee is no longer forms part of the settlor’s personal assets. The creditor appointed as a prior beneficiary is entitled to claim the beneficial interest from the trust property held by the trustee when the debtor falls into default. The Supreme Court declared that the nature of the beneficial right is a fiduciary right, not a real right granted by way of security. Even this is a important ground but not enough to explain the legal relationship of the parties concerned. It is required to interpret and apply existing security law and principles to correspond with the structure of a security trust. From this point of view this article aims to provide the clear detailed exposition of settlor’s legal position who has constituted a trust to secure other's debt. This article disagrees the Supreme Court’s position and argues that it is the settlor who provides prior beneficial right to creditor and contributes the chargeable property, so the right to indemnity against the debtor should be granted to the settlor and he should be able to subrogate the creditor's rights. The trustee holds and manages the trust property for the benefit of the beneficiary, but there’s no reason to present the trustee with the right to indemnity because he administrates as his own obligations under the trust contract and he is liable to the beneficiary only within the trust property. Moreover the settlor's status as a security provider is admitted if the settlor of a security trust is given a rehabilitation order by a court. However the creditor, the prior beneficiary doesn’t hold a security right on the settlor's property when the rehabilitation order is made, so he can exercise his rights regardless of the rehabilitation procedure.