信託受託者의 補償請求權에 관한 考察

Abstract

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'.