수익자취소권 재고

Abstract

To achieve the purpose of the trust a trustee may exercise powers conferred by the terms of the trust. A trustee also has many duties which are strict and onerous except to the extent that the trust instrument moderates them to a greater or lesser extent. The Trust Act codifies various remedies available to rectify or to prevent a breach of trust for violation of a duty owed to a beneficiary. When a trustee commits a breach of trust, especially against the trust purpose he does judicial act concerning trust property, the Trust Act art.75 enables a beneficiary to rescind the trustee’s act. The Trust Act art.75 as well as art.76 provide only a few conditions for a beneficiary to set aside wrongful acts of the trustee. The drafters left open for further consideration by the courts and scholars detailed conditions and effects of the beneficiary’s right of rescission. Hitherto a number of theories contend that this right of beneficiary is equivalent to the equitable right to trace and the effect is absolute. But this construction doesn’t correspond to the intent and the regulation of the Trust Act art. 75. Actually in English law the beneficiary has a proprietary remedy because the beneficiary is still the beneficial owner, so he can go against a third party. But the Korean legal system doesn’t know the separation of ownership, so called dichotomy of ownership. While it is a trustee who has ownership and manages the trust property, the beneficiary has a beneficial interest in trust. The beneficiary’s rights are fundamentally personal. Furthermore the beneficiary’s right of rescission aims to void the trustee’s wrongful acts and to restitute the trust property. From this point of view it approaches to the creditor’s right of rescission under the Civil Act, though each of them has a different institutional origin. According to many scholars and case law the effect of creditor’s rescission is only relative for securing valid transactions and striking a balance between the parties concerned. The effect of beneficiary’s right of rescission can be construed in the same context : the beneficiary is authorized to rescind the trustee’s act which is against the trust purpose, only if the party got a legal interest in the trust property with notice, whether actual, constructive, or imputed, of the breach of trust. As a result the trustee’s act becomes void between the beneficiary and the party, and the party is obliged to restitute the acquired property or interest to trust fund.