信託法上 受益者의 信託違反 處分行爲 取消權

Abstract

A beneficiary’s right of rescission under the Trust Act Lee, Keun-Young (1) The purpose of this study is to analyze a beneficiary's right of rescission under the Trust Act §52. According to the Trust Act §52, the beneficiary can rescind a trustee's dispositions of the trust property when the trustee has committed a breech of trust of main object. And the beneficiary can do restoring of the trust property.But, the effects of his rescission have binding power to not only the trustee(transferor) but also a transferee(the third person) and a new transferee who has dealt with former transferee. So it is, what is called, a peculiar system in trust. Because of this uniqueness, it will inflict a unexpected damage on the third person, who has deal with trustee, that the beneficiary exercises his this right. So the section 52 stipulates the many requirements. The trustee's dispositions caused the breech of trust of main object is especially important requirements. And they mean the trustee's dispositions out of his power.Especially the breech of the 'duty to exercise reasonable care and skill' and 'duty of loyalty' will become at issue in the various breech of trustee's duties. (2) The control of interests between the beneficiary and the third person is one of the most important subjects. And the beneficiary can rescind the trustee's dispositions of the trust property when the trustee has committed the breech of trust of main object in the Trust Act §52.But there are some problems about this subject in the existing theory. One theory explains that §52 for the control of interests is a policy clause without theoretical explanation. The others explain it regardless the nature of interests of the beneficiaries. Therefore, to solve these problem, it is considered that the necessary of study to the construtive trust in the Restatement(2nd) of Trust §288.