信託法上의 受託者의 地位

다국어 초록 (Multilingual Abstract)

1. The purpose of this study is examining and analyzing the legal status of the trustee under the Trust Act in the Republic of Korea.
The system of trust is, substantially, a property administration system for beneficiary. so has been attached importance to the fiduciary relationship. And the trustee is a core of the trust system in the fiduciary relationship. To understand a trust institution properly, preferentially, we should comprehend the system and the meaning of trustee. Therefore, the focus of this study is on the understanding of the trustee with the key word of a legal status in the unit of trust system, a trust property and benefificiary etc. Additionally, the matter of a legal status of trustee relating to obligee would be considered in this study.
2. The trust system which we have experienced shows one of the characteristics of the Anglo-American legal system. It had been developed from the concept of "use" which had been practiced for a long time under the Britisch feudal system during the Medieval Age. The initial trust system in the Republic of Korea originated from the establishment of trust system by Japanese government during the Japanese colonial days. At that time, the Choseon Trust Business Act was promulgated to regulate trust companies and the Trust Act of Japan was also invoked. Currently the trust system is regulated by the Trsut Act and the Trsut Business Act which were enacted in 1961 in the Republic of Korea.
The Republic of Korea has adopted this concept of the trust and has institutionalized it as modern trust system in the Trust Act. The trust menas a legal relationship in the Trust Act. This legal relationship is that trustor trasfers his prorerty rights or disposes other rights to trustee, and trustee subjects to administrative obligations for example not to dispose property etc, for the benefit of another person(beneficiary) or specific purposes, arising as the result of a trust contract or trustor's will.
The trust is a kind of property adminstrative system using other person(trustee). So other property administrative systems in the Republic of Korea Civil Act such as Administrator of Absentee's Property System , or Parent Authority System and Guardian System, is compared, the most outstanding characteristic of the trust is that the title of property right itself is transferred to the trustee, while the other property administrative system of Civil Act take the form proxy.
3. In chapter 3, this study examines what kinds of authorities are involved in the trustee in aspects of both the general and special authorities. Then this study focuses on the effect of the action which the trustee did out of the authority. Especially, this study focuses on the point of the fact that the right of control which the trustee has is likely a kind of the common right of control in a broad sense.
4. With respect to the status of the beneficiary, the duty of trustee, the duty of benefit and the right of trustor with relation to the trustee would be considered. In this study, I would consider the duty of trustee with relation to the beneficiary in the case of the current Trust Act existing or not seperately.
(1) Section 2 in this chapter, with relation to the duty of trustee, this study would examine the case of the Act existing. For example, contents of this group are ① duty to exercise reasonable care and skill(§ 28), ② the duty not to take profits(§ 29), ③ duty to keep trust property separate(§ 30), ④ duty not to achieve the trust property(§ 31), ⑤ duty not to delegate(§ 37), ⑥ duty to furnish information(§ 33~34).
With regard to the work of trust by duty to exercise reasonable care and skill, the relation to the same duty in the common law would be considered. In this point of view, this study would examine the differences of liabilities of the trustee by the character of the contract etc. With the duty to keep trust property separate, this study would examine the character of the trust act part 3 specipically. For the duty not to delegate, this study would consider the extent of self-enforcement and the current situations in the U.S.A.
(2) And the other group, section 3 in this chapter, which has not articulated in the current Act is on ① duty of loyalty, ② duty of impartiality.
In this section, with regard to the duty of trustee which is not articulated in the Act, this study would examine the necessity of agreement about the duty of loyalty and the duty of impartiality under the current Trust Act. Especially, with the general duty of loyalty which is the core of the duty of trustee, only the restriction on the right is articulated in the trust Act section 31. Therefore, this study would consider the character and the effect of this duty under the premise that we could take the validity of the duty of loyalty.
(3) With regard to the liability of the breach of trust, in the latter part of section 4, this study would examine the system of the tort and the duty of the recovery etc. And this study would consider the right of wihtdrawal which is regarded as a special institution in the trust system.
(4) In the section 5, for the duty of the trustee's benefit and the limitted liability of trustee, this study would take the liability to the extent of the property which was transferred to the trustee. And this study would consider the maintenance of the origin and the benefit as the exception to the limitted liability.
(5) In the right of the beneficiary, section 6, this study would examine the right requiring the rewards which would be requested in the course of the work of the trust. Especially, the right of the requiring the expense and liability is articulated to request on the property and the beneficiary under the trust Act section 42. So, this study would focus on the system of the unlimitted liability specifically.
5. In latter part of chapter 5, the focus of this study is on the problems of the outside contract which would happenned when the trustee would deal with the others in the course of the trust. Especially, the debt to the third person (especially obligee) who is not related with the trust contract is not articulated in the trust Act in the Republic of Korea. So, the problem is on the extent of the trustee's liability. In this chapter, this study would focus on the validity of the trust contract which includes the limitted liability of the trustee.
6. In chapter 6, the focus of this study is on the problems of the case of plural trustee. And in chapter 7, this is the conclusion in this study.
7. The institution of a trust has made competitive relationship with many legal institutions as a fuction of reacting on the economic and social demands. The flexibility which is the most important character of the trust has increased the demand and the variety. In Anglo-American Law, the system of the trust has developed the commercial trusts using the theory of personal trusts. But in the light of the operating the trust system in the Republic of Korea alike Japanese, we just have made the separate theories between commercial trusts and personal trusts. So, comparing Anglo-American Law, in my opinion, we need some measures to compensate difficulties to use the system of the trust practically. In this situation, the right and duty of the trustee who is recongnized as the core of the trust, in my opinion, need to be revised more practically. Additionally, I think the duty of loyalty and impartiality should be enacted.
Finally, operating the trust more efficiently, I insist we should leave the more rights to use it to the trustee's discretion and rule stricter liability.

목차 (Table of Contents)

• 목차
• 第1章 序論 = 1
• 第1節 硏究의 目的 = 1
• 第2節 硏究의 範圍와 方法 = 5
• Ⅰ. 연구의 범위 = 5
• Ⅱ. 연구의 방법 = 8
• 第2障 信託의 法的 構造와 構成要素로서의 受託者 = 9
• 第1節 信託의 意義와 沿革 = 9
• Ⅰ. 신탁의 의의 = 9
• Ⅱ. 신탁제도의 연혁 = 17
• 第2節 信託의 本質 = 38
• 第3節 構成要素로서 受託者의 重要性 = 46
• Ⅰ. 신탁의 구성요소 = 46
• Ⅱ. 受託者의 受託能力 = 59
• Ⅲ. 신탁법상의 수탁자의 중요성 = 61
• 第3章 信託財産에 대한 地位 = 62
• 第1節 信託財産과 그 名義人으로서의 受託者 = 62
• Ⅰ. 신탁법상의 신탁재산 = 62
• Ⅱ. 신탁재산의 명의인으로서의 수탁자 = 73
• 第2節 受託者의 一般的 權限 = 74
• Ⅰ. 수탁자의 직무권한으로서 관리·처분권 = 74
• Ⅱ. 직무권한의 일반적인 내용 = 75
• 第3節 受託者의 特別權限 = 79
• Ⅰ. 신탁관리인 선임청구권 = 79
• Ⅱ. 관리방법 변경청구권 = 79
• Ⅲ. 신탁종료명령청구권 = 79
• 第4節 受託者가 權限 外의 行爲를 한 경우의 效力 = 79
• 第4章 受益者에 대한 地位 = 80
• 第1節 總說 = 80
• 第2節 信託法上 規定된 受託者의 義務 = 80
• Ⅰ. 선량한 관리자의 주의에 의한 신탁사무처리의무 = 80
• Ⅱ. 受託者의 利益享受禁止義務 = 98
• Ⅲ. 分別管理義務 = 102
• Ⅳ. 受託者의 權利取得制限義務 = 121
• Ⅴ. 自己執行義務 = 128
• Ⅵ. 情報提供義務(신탁법 제33조, 34조) = 144
• 第3節 信託法에 規定되지 않은 受託者의 義務 = 157
• Ⅰ. 一般的 忠實義務 = 157
• Ⅱ. 公平義務 = 169
• 第4節 信託義務違反의 責任 = 178
• Ⅰ. 서설 = 178
• Ⅱ. 신탁법 제38조, 39조의 배상책임(손해배상 또는 신탁재산 회복 책임) = 180
• Ⅲ. 수익자에 의한 취소권(수탁자의 신탁위반에 대한 처분취소권) = 193
• 第5節 受託者의 給付義務와 物的 有限責任 = 200
• Ⅰ. 수탁자의 급부의무 = 200
• Ⅱ. 물적 유한책임(신탁법 제32조) = 200
• Ⅲ. 元本補塡·利益補足의 특약(물적 유한책임의 예외) = 203
• 第6節 受益者에 대한 權利 = 205
• Ⅰ. 서설 = 205
• Ⅱ. 수탁자의 비용 및 손해보상청구권 = 206
• Ⅲ. 신탁보수청구권 = 227
• 第5章 受託者의 第3者에 대한 地位 = 232
• 第1節 序說 = 232
• 第2節 信託目的 遂行을 위한 行爲(受託者의 權限 內의 行爲) = 234
• 第3節 信託目的의 範圍 外의 行爲 = 235
• 第4節 受託者 個人責任의 制限 = 236
• Ⅰ. 의의 = 236
• Ⅱ. 수탁자가 제3자에 대하여 부담하는 책임유형에 따른 제한방법 = 237
• Ⅲ. 責任限定特約의 성질과 내용 = 238
• 第6章 複數受託者의 地位 = 244
• 第1節 序說 = 244
• 第2節 共同受託者의 共同管理義務 = 245
• Ⅰ. 공동관리의무의 원칙 = 245
• Ⅱ. 공동관리의무의 예외 = 247
• 제3절 共同受託者의 連帶責任 = 248
• Ⅰ. 의의 = 249
• Ⅱ. 수익자에 대한 연대채무의 성질 = 249
• Ⅲ. 신탁사무처리에 관하여 부담하는 채무의 경우 = 250
• 第7章 結論 = 251
• 참고 문헌 = 259
• Abstract = 270
• 표 차례
• 표 1 = 133
• 표 2 = 134