수탁자 의무위반 행위의 사법적 효력과 수익자 취소권

Abstract

Under the Korean trust law, a trustee who has breached her fiduciary duty shall be responsible for any damage born by the trust property. Can one invalidate a transaction made by such wrongdoing trustee? This paper is to explore the answer to this simple but complicated question. It actually requires analysis from three different phases because trustee’s wrongdoings may be classified as follows: First, the misbehavior by a trustee may turn out to have effect only upon her inherent property. For example, a trustee may borrow some money with the intent that the debt would be born by the trust property, but the lender regards the loan should be fall on trustee’s inherent account. In such case the debt shall be charged on trustee’s inherent account in the first place and the trust property has nothing to do with the debt. For this type misbehavior, devices under the trust law restraining trustee’ authority need not be triggered. Second, the misbehavior by a trustee may have failed to satisfy important elements required to have full effect on trust property. For example, a transaction between trust property and trustee’s inherent property needs an approval by the beneficiary or trust documents. Without such elements, the transaction shall be null and void. Lastly, even though the trustee’s intended transaction is equipped with essential elements, it is still subject to beneficiary’s cancellation right: under the Art. 75 of the Korean Trust Act, a beneficiary may cancel a transaction on trust property if such transaction was in violation of the purpose of the trust. In order to protect innocent third party, the beneficiary’ right to cancel may be exercised only if the counterparty of the transaction (or subsequent purchaser) knew such trustee’s violation of the purpose of the trust. The remedies against trustee’s unfaithful disposal of trust property are diverse worldwide. While the Anglo-American trust law heavily depends upon constructive trust and tracing/tracking theory, the Korea has took different path, adopting cancellation right of beneficiary. The three-step approach taken by this paper should help systematically understand the legal effect of trustee’s breach of fiduciary duty.