사해신탁의 취소와 수익자보호 ―일본 신신탁법을 중심으로―

Abstract

In order to fulfill the purpose of the trust, important rights and obligations are established between the truster, trustee, beneficiary, each of their creditors and other interested parties. This article will focus on the revocation of fraudulent trust within the Korea trust Act Article 8, to analyze these rights and obligations. According to the Korean trust act article 8, if an obligor settles a trust knowing that it would be prejudicial to the obligee, the obligee may claim for the revocation and the restoration to the original state as prescribed in Article 406 (1) of the Civil Act, even though the trustee has acted in good faith. Therefore, revocation of fraudulent trust refers to the case when a truster has established a trust, knowing that it would be prejudicial to the obligee, the obligee of the truster is given the right of revocation towards the trustee or beneficiary under certain conditions. In other words, the obligee, as the third party, will have the right to take off the enforcement of the juristic act that was put upon the obligor and the other person. While the Korean trust act article 8 is the same as the Japanese old trust act article 12, the civil act article 406(1) of Korea and the civil act article 424(1) of Japan also agree on the obligee󰡑s right of revocation. Because Korea has been a step behind the research of fraudulent trust, the arguments and trend legislation of Japan would still apply. In the following writing, the problems of the Korean trust act and facts to be considered, during the legislative process of changing the Japanese old trust act to the Japanese new one, to establish a legitimate profit settlement between the trustee and obligee based on conditions and effects of the revocation of fraudulent trust act will be pointed out in order to come up with a solution.