信託受託者의 補償請求權에 관한 考察

• 영문명: A study of a trustee's Right to Reimbursement
• 발행기관: 한국재산법학회
• 저자명: 이근영(Lee, Keun-Young, 李根瑩)
• 간행물 정보: 『재산법연구』財産法硏究 第26卷 第3號, 237~291쪽, 전체 55쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.02.28

영문 초록

Trust Act §42 prescribes a trustee's right to reimbursement. This right has been recognized in England and US by cases or statues. Article 42 of Trust Act of Korea follows the tradition. When a trustee did trust affairs for trust estate or a beneficiary, the trustee can request compensation the damage that it received without expense and without the fault during performing the affairs. This is a reflection of principle which is "the person make a profit on control of a business and bears the risk simultaneously" like a delegation(§688 (3) in Civil Law). When a trustee, who performs a trust affairs for the profit of the beneficiary solely, is charged with the debt to a trust creditor, he can claim the compensation against the trust estate or the beneficiary. Especially, trustee can be compensated by disposing a trust estate oneself prior to the different holder of a right(for example, a trust creditor). This article examines a few problems of a claim for this a trustee's right to reimbursement. First issue is a problem the right to reimbursement of priority to between the trust estate and the beneficiary. Second issue is a problem of the case compulsory execution where the trust estate is property other than the money. Especially the trustee can apply for a compulsory execution to trust estate while being in trustee's position. Third issue is the meaning of "other holder of a right" and the legal nature of the priority under the Trust Act § 42 (1). Forth issue is the problem of appropriateness about admitting the claim of compensation of the beneficiary, and the effect of a waiver of interests of the beneficiaries. Many opinion is existed in the effect of a waiver of the 'Interests of the beneficiaries' under the Trust Act §42 (3). In my view, it is allowed in both self-settled trust and non-self-settled trust. And in this case, the beneficiary escapes from the trustee's demand, or the right of indemnity based on the § 42 (2). But, in the case of non-self-settled trust, even if the beneficiary take a benefit of trust, his obligation which is already happened, is exempted form the trustee's the right of indemnity based on the § 42 (2) by the waiver of the 'Interests of the beneficiaries'.

키워드

신탁법 수탁수탁자 신탁수익자 신탁재산 보상청구권 우선권 자조매각권 수익권의 포기 trust trust law trustee beneficiaries trust property right to reimbursement right of priority waiver of interests of the beneficiaries