신탁재산에 대한 수탁자와 수익자의 권리 -DCFR 신탁법상을 중심으로- = The Rights of Trustee and Beneficiary on Trust Asset － Focusing on DCFR －

다국어 초록 (Multilingual Abstract)

This article has focused on how we understand DCFR and trusts law. This article introduces DCFR Book X and compares with Korean newly amended trust law based on American one. Main difference between DCFR and Korean trust law may come from the characteristics on the right of beneficiary although the fiduciary duties of trustee are similar to each other. The parties for creating and managing trusts are truster, trustee, and beneficiary. The truster is a person who constitutes or intends to constitute a trust by juridical act. The trustee is the person in whom the trust fund becomes or remains vested when the trust is created. The beneficiary is a person who, according to the trust terms, has either a right to benefit or eligibility for benefit from the trust fund. The trustee plays a main role to keep obligations arising from trust while the beneficiary is a main party in enjoying the trustee’s obligations.
A trustee who is liable under liability of trustee to reinstate the trust fund is also obliged to compensate a beneficiary who, despite reinstatement of the trust fund, does not obtain a benefit to which that beneficiary was entitled or, if there had been no failure of performance, would have been entitled under the trust terms. In particular under DCFR, where a trustee transfers a trust asset to another and the transfer is not in accordance with the terms of the trust, the transferee takes the asset subject to the trust if the transfer is gratuitous or the transferee knows or could reasonably be expected to know that the transfer is by a trustee and is not in accordance with the terms of the trust. A transferee has a corresponding right to a return of any benefit conferred in exchange. On the other hand, in this situation, a beneficiary in Korea law is entitled to the trust asset by making the transaction between the trustee and the transferee void.
I believe that DCFR considers the right of beneficiary on trust asset a proprietary right while Korean trust law does it a contractual right against a trustee. In order to protect her right on the trust asset, Korean law allows the beneficiary to avoid the transaction between the trustee and the transferee as the right to avoid by a creditor.

참고문헌 (Reference)

1 이연갑, "｢신탁법｣상 수탁자의 의무와 권한" 법무부 (48) : 30-52, 2009

2 김형배, "채권각론" 박영사 2001

3 함대영, "신탁형 자산유동화에서의 진정양도 판단" (44) : 2010

4 정소민, "신탁의 설정에 관한 소고 - 공통참조기준초안(Draft Common Frame of Reference)을 중심으로 -" 법학연구소 33 (33): 49-79, 2009

5 임채웅, "신탁수익권에 관한 민사집행의 연구" 법학연구소 50 (50): 273-304, 2009

6 안성포, "신탁법의 개정방향 -법무부 2009년 신탁법 전면개정안을 중심으로 -" 법학연구소 51 (51): 193-235, 2010

7 최수정, "신탁계약의 법적 성질" 한국민사법학회 45 (45): 477-500, 2009

8 김형배, "민법학강의" 신조사 2008

9 김대정, "계약법(상)" 도서출판 피데스 2007

10 "REST 3d TRUSTS"

11 "REST 2d TRUSTS"

12 Jesse Dukeminier, "Property" 1993

13 Jill E. Martin, "Modern Equity" 1993

14 George Gleason Bogert, "George Taylor Bogert, and Amy Morris Hess" Bogert’s Trusts and Estates 2012

15 Christian von Bar, "6 Principles, Definitions and Model Rules of European Private Law" 2010