사해신탁취소권과 수익권양도청구권의 법적 성질 및 도산절차상 취급 = Revocation of Fraudulent Trusts and Claims for the Transfer of Beneficial Interests:Legal Nature and Treatment in Insolvency Proceedings

다국어 초록 (Multilingual Abstract)

A trust is established when a settlor transfers trust property to a trustee and designates a beneficiary who is entitled to enjoy the benefits derived from that property. Where the establishment of a trust prejudices the settlor’s creditors, it constitutes a fraudulent trust. Article 8 of the Trust Act provides specific rules to protect creditors in such circumstances. Although these provisions perform functions similar to the creditor's right of revocation provided under the Civil Act, they are significant as special provisions reflecting the structural characteristics of trusts, which are based on a tripartite legal relationship among the settlor, trustee, and beneficiary.
Article 8 of the Trust Act consists primarily of two mechanisms:the revocation of a fraudulent trust and the claim for the transfer of beneficial interests. In particular, the claim for the transfer of beneficial interests represents a distinctive mechanism that reflects the structural features of trusts. These two rights serve complementary functions in protecting creditors but they are understood as independent rights that must be exercised alternatively. The revocation of a fraudulent trust may be exercised against either the trustee or a beneficiary acting in bad faith, and the scope of revocation and restitution may differ depending on the party against whom the right is exercised.
In insolvency proceedings, additional legal issues arise, including the relationship with avoidance powers, the right of repossession, and the classification of related claims as administrative claims. The claim for the transfer of beneficial interests is distinct from the revocation of a fraudulent trust, although it shares similar substantive requirements. Its most significant feature is that it presupposes the continued validity of the trust. Consequently, its legal status in insolvency proceedings may differ from that of the revocation of a fraudulent trust. In light of these issues, this article examines the legal structure of the revocation of a fraudulent trust and the claim for the transfer of beneficial interests, as well as the major legal issues arising from them.