수익권 포기의 개념, 절차 및 비용보상책임에 대한 효과: 신탁종료시의 포기를 중심으로

Abstract

The section 57(1) of the Revised Korean Trusts Act in 2011 provides that "a beneficiary may express his intention to waive his beneficial rights to the trustee" which adopts the same spirit in the section 51(3) of the previous Trusts Act. Similarly, the section 46(4) of the Revised Act providing for "when a beneficiary waives his beneficial rights, the trustee cannot request the beneficiary to indemnify the trust expenses spent for trust administration" also seems to succeed the predecessor provision in the previous Trusts Act. With regard to these provisions of the beneficiary's waiver of beneficial rights, there is a controversy whether the beneficiary's waiver is to be interpreted as a normal waiver of rights or as a waiver of a designated beneficiary status. It is argued in this article that the beneficiary's waiver of beneficial rights is the latter because the waiver extinguishes not only beneficiary's rights but the indemnity liabilities altogether, and thus the waiver of the beneficiary status should be treated differently in many respects from a normal waiver. In addition, I will investigate the question as to who should bear the liability to indemnify the trustee where the designated beneficiary waives his beneficiary status. This question is particularly important and complex at the time of the termination of a trust because upon termination, there arises by the operation of law a statutory trust for the existing beneficiary (or for a remainderman or other beneficiary, if such person is designated by the settlor), and according to the Korean Supreme Court, the trustee's expenses caused during the expired trust are to be borne by the beneficiary of the expired trust while the expense of the statutory trust by the beneficiary of the statutory trust.