신탁법상 수탁자의 책임에 대한 고찰-신인의무(fiduciary duty)를 중심으로-

Abstract

The trust is based on a trust relationship, and such a trust relationship is similar to a delegation in civil law in terms of entrusting a certain act or office work, and is similar to the bestowal or burden donation in terms of it is used for a specified purpose while granting property. However, the trust in the Anglo-American law is different from the concept of the civil law, and also different from the civil law in terms of the concept of the duty of care and loyalty obligations arising from differences between the Anglo-American law and the civil law. It is necessary to focus on the authority of the trustee who has acted beyond that authority and the obligation that the trustee shall bear in spite of the fact that the trustee has limited its authority in the trust giving broad authority to the trustee. There are differences in the obligation of duty of cognition in the civil law, duty of carelessness of the newcomer, duty of loyalty and faithfulness. These differences have been recognized only in the theory and the precedent. The revised Trust Act makes it necessary to stipulate a duty of loyalty separately from the state’s obligation. In case of a breach of such obligation so that any damage or alteration of the trust property occurs due tothe obligations of the trustee, the trustee may demand restitution of the trust property or compensation for damages. This is a system that can claim the damage if there is any reason that it is not enough to restore the original, or if there is any reason that it is impossible to recover the original. Also, there is a regulation that can cancel the beneficiary with a cancellation right.