신탁수익권의 가분성에 관한 연구 -일본판례를 중심으로-

Abstract

The beneficiary rights of a trust could be inherited. We don’t have discussed this issue enough till now in Korea. To further the discussion, I have some prerequisites. (1) This article is based on Claim Theory for the nature of the trust. (2) The court’s precedents have told that the divisible claims are automatically divided and go to inheritors, so they might not be the subject of an inheritance process division procedure. But I don’t think they are right and the court judicial practice too doesn’t give any respect to them. This article tries to introduce the Japanese cases. They take the beneficiary rights as an indivisible claims. When they are inherited, they are under the semi joint ownership of co-inheritors. Unless the joint ownership is resolved, any inheritor can not solely request the revocation of the trust against the trustee. This article suggests the conclusion of this issue based on Korean law. I don’t agree with the Japanse cases. What this article wants to make clear is like these; First, the beneficiary rights of a trust are divisible. Second, because even the divisible claims may be subject to inheritance property division procedure. The court’s precedents should be discarded. Third, the revocation of a trust by a inheritor who owns a part of beneficiary rights might harm the trust itself or the trustee. But it is not a matter of the trust law or theory. It is one of indivisibility of revocation right.