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August 02, 2010

転借人の転貸人・賃貸人に対する敷金返還請求権

建物の転借人が転貸人に預け入れていた敷金が,転借人である賃借人が賃貸人に預けて入れていた場合に,賃借人の賃貸人に対する敷金返還請求権Bを,転借人の転貸人に対する信託財産とする信託契約は存在するか。この命題につられて判決文(大阪高判平20.9.24)を読んでしまったが,問題と言うほどではなかった。
だが弁護士がいかに裁判上の戦略をたてるかという意味では参考になろう。

  転借人X    ←    転貸人(賃借人)Y  ←   賃貸人Z

  敷金返還請求権A→    左同B        →

元々の争いは,転借人Xと転貸人Yとの間にあった。Xは,敷金返還請求権Bが自分に帰属することを説明するために,債権BをYに信託したものである,と構成した。
おそらく,Yが返還無資力となり,そのままではXの元に返ってこないことを心配したのかもしれない。返還請求権Bを差し押さえ,転付命令を取得すれば,そのまま返ってくる可能性もあった。しかし,Xは他の債権者の差し押さえの競合を避けるためか,直接自分の財産であると主張したようである。1審判決はXの主張を認め,①Xが返還請求権Bを有する,②YはZに対し,Z・Y間の敷金返還請求権BがXに移転したことを通知せよ,と命じた。どうやら,1審には,パチンコ店経営のための賃貸借は,実質的にはXとZとの賃貸借であり,Yは形式的に間に入っているという認識があったようだ。だから,Zにそのまま渡った敷金4億円は,Xの信託財産としてZが管理していると考えることもできる,と付言し,パチンコ店の営業終了,賃貸関係の終了に伴い,ZからXに敷金の返還されることが予定されていたというべき,とまで述べている。
ZはXまたはYのどちらに返還すればいいか分からないから,弁済供託した。すると,Xはこの供託還付請求権はが自分にある,と主張を変更した。
弁済供託すれば,Zは紛争当事者から逃れられる。供託金の行方だけが争いの対象となった。控訴審は,Xの訴えの交換的変更により,①,②の判決が効力を失い,敷金返還請求権は供託金還付請求権の帰属の問題だけになったと考えたのである。いわく,「XとYとの間には明瞭な賃貸借契約書が作成され,コミッションを確保し,賃料振込はY・Z間とは別になされているから,XとZとの間に賃貸借契約を認めることはできない。また,建物の転借人であるXが転貸人であるYに預け入れた敷金が,賃貸人Zに預け入れた敷金に充てられた場合でも,当事者間において法的な意味での信託契約が意識されていた形跡もなく、賃貸借契約に於ける敷金返還請求権がXを委託者兼受益者とし,Yを受託者とする信託財産であることを認定できるような事情もない以上,両者間に信託の意思があったと認めることはできない。」
このXの法律構成は返還請求権Bの帰属を主張するのに,どの程度貢献したのであろうか。
この事案では,Xがパチンコ店を営業するのに,ZとではなくYと契約し,Yがいわば他のテナントを含むZの包括的賃借人として,契約関係を管理していた。Zは電鉄会社であるから,個々のテナントとは直接契約しなかった。Xはこの実態を踏まえて,YがXのために契約を管理する立場にある,と考えた。そしてテナントXが差し入れた敷金は,Yを経由してZに交付されることにより,Xの信託財産となると考えたようだ。
Xにとっての問題は,信託契約書はなく,そのような交渉の事実もない点である。1審判決は,信託契約の成立を認めたが,なぜYがXのために,Zに対する敷金返還請求権を管理させることを目的とする契約が成立したと考えたのか,読み取れない。
信託では受託者が信託財産を分別管理しなければならない(旧法28条)。受託者Yの一般財産と混同する恐れがあるからである。ところが1審は分別管理は信託の成立要件ではない,とした。反対に控訴審は,分別管理は信託の成立要件だ,とした。そして,本件では,信託契約成立の外形がなくても,敷金返還請求権Bが信託財産であると認められる特段の事情があれば契約の成立を認めてもいいが,そのような事情はない,とした。
信託は新しい法律問題を生み出している。投資信託などはその頂点にある。信託の内容を特定しないと,どこまでが受託者の法的義務なのかの紛争になりやすい。
Xの戦略的な問題として,なぜ,訴えを交換的に変更したか気になる。控訴審では色々言っているようだ。XとZとの間に直接の賃貸契約が成立した,信託が認められないとしてもYがZとの賃貸関係から離脱した際,返還請求権BについてXが承継することを合意した云々。しかしXはなぜ,ふつうに返還請求権を仮差し押さえし,勝訴判決のあと,転付命令をとらなかったのだろう。返還請求権BがXに帰属するという1審判決を得ながら,なぜ,控訴審でこの請求を引っ込めたのか。そのまま権利の帰属を主張すればよかったのではないか。信託という明白な証拠もない主張を展開する必要はなかったのではないか。事案を正確に知らないで論評することは控えたいが,不要な法律問題に広げすぎたのではないか,という疑問が残る。信託という分野には未知の法津問題が多い。原告は地雷原に踏み込んだのではないか。そして,控訴審判決はやたら長いが,Xが色々主張しているから,それに応答したに過ぎないのだろう。

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