담보신탁의 경제적 분석: 도산절연의 문제를 중심으

The trust for the security purpose, which have been utilized in trade practice since the 1990s, are increasingly being used by creditors who wish to avoid the binding effect of a debtor’s rehabilitation process due to their low cost of establishing trust compared to a mortgage, their ease of execution, and their bankruptcy remoteness effect, which has been consistently affirmed by the Supreme Court since 2001. There is a view that the Supreme Court's precedent on the bankruptcy remoteness of the trust for the security purpose should be maintained, as recognizing the bankruptcy remoteness of the trust for the security purpose can benefit other creditors in general by allowing debtors to obtain cheaper financing, making it easier for distressed debtors to obtain financing, and overruling the precedent would be disruptive for market participants in terms of protecting their trust. However, recognizing the bankruptcy remoteness of the secured trust has the negative effect of causing a debtor to fail to rehabilitate due to the holdout of the secured trust creditor even if the going concern value of the debtor is higher than the liquidation value. And the debtor does not have the shield of binding rehabilitation process against the secured trust creditor, resulting in excessive transaction costs for the parties in the rehabilitation process. Furthermore, it is difficult to find empirical evidence that the trust for the security purpose is a cheaper means of financing compared to other security devices such as mortgages. And it cannot be argued that it is socially efficient to give financial privileges in the form of bailouts to distressed debtors in exchange for providing trusts for the security purpose. If the precedent is legally unjustified, the principle of the rule of law requires that it be changed. In particular, it is difficult to see that changing the current precedent of recognizing the bankruptcy remoteness for the trust for the security purpose will result in an intolerable disadvantage for certain market participants. And it is expected that the market will be able to gradually absorb and accept the shock of the overruling. In addition, the Supreme Court has already made a en banc ruling in 2018 that can be a signal of the overall overruling, so it cannot be said that market participants cannot anticipate the overruling at this point. Therefore, the Supreme Court precedent affirming the bankruptcy remoteness of the trust for the security purpose, which is inconsistent with the bankruptcy law doctrine and not found in other jurisdictions, should be changed.