신탁 수익자의 수익권 포기와 수탁자의 수익자에 대한 비용상환청구권 소멸 여부 - 대법원 2016. 3. 10. 선고 2012다25616 판결을 중심으로 - = Legal Analysis on the Relationship between the Beneficiary's Waiver of Rights to Benefit from a Trust and the Beneficiary’s Obligation to Reimburse Related Expenses to a Trustee

다국어 초록 (Multilingual Abstract)

Paragraph 2, Article 42 of the former Trust Act (prior to the amendment by Act No. 10294 on July 25, 2011) allowed a trustee to claim compensation for costs from a beneficiary, provided, however, that Paragraph 3, Article 42 prohibited a trustee from claiming compensation for costs from the beneficiary when the beneficiary waives his or her rights to benefit from a trust. The issue of not being able to effectively regulate the legal relationships in relation to the trusts which take various forms and structures has been continuously raised since the former Trust Act simply stipulates the general relationship between a beneficiary and a trustee without defining and specifying different results and effects of waiving the beneficiary's right to benefit. The related issue was raised in the settlor-beneficiary trust case in 2008 regarding a beneficiary's waiver of his or her right to benefit without following his or her duty to reimburse a trustee. After a relatively lengthy trial, the Supreme Court made a decision on Mar. 10, 2016 (2012 Da 25616). Prior to this ruling, discussions on how to deal with a beneficiary’s waiver of his or her right to benefit under the former Trust Act had mainly been limited to the academic discussions based on theories. While this ruling was limited to a specific circumstance, through this ruling, the Supreme Court recognized a part of the consequence. In turn, this ruling allows more substantive and specific research on this issue. Regarding an issue of whether a beneficiary is exempt from his or her obligation to reimburse a trustee when such beneficiary waives his/her right to benefit from the trust, we hereby review the relevant facts, the trial court decision, and the appellate court decision, etc. in relation to the aforementioned ruling of the Supreme Court. The Supreme Court ruled that in case of a trust where a trustor becomes a beneficiary, if such beneficiary waives his/her beneficial rights, then it is still obligated to reimburse a trustee costs and expenses already incurred, while it did not take a firm position whether a beneficiary is exempt from his/her obligations to reimburse a trustee those costs to be incurred after a beneficiary’s waiver of his/her rights. So, this issue still remains controversial. Thus, this article argues that the Trust Act should be revised that only in case of a trust where a trustor does not become a beneficiary, if a beneficiary waives his/her beneficial rights, then a beneficiary will be exempt from his/her obligations to reimburse a trustee the costs and expenses incurred or to be incurred.

참고문헌 (Reference)

1 문형배, "토지신탁상 수탁자의 손해배상의무와 보상청구권" 부산판례연구회 19 : 2008

2 최수정, "신탁상 발생한 비용의 배분 - 서울고등법원 2012.2.2. 선고 2010나84835 판결을 계기로 -" 한국비교사법학회 19 (19): 667-702, 2012

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4 최동식, "신탁법" 법문사 2006

5 안성포, "분양형 토지신탁의 비용보상청구권과 수익권의 포기"

6 신영수, "부동산신탁의 쟁점" 서울대학교 금융법센터 2013

7 최수정, "개정 신탁법상의 수익권" 법무부 (59) : 139-160, 2012

8 이연갑, "受託者의 補償請求權과 忠實義務" 민사판례연구회 (30) : 271-314, 2008