信託財産에 强制執行할 수 있는 債權者

Abstract

As with English trust law, Korean Trust Code has the principle of non-liability of the trust estate. In fact, the Trust Code is modelled on the 19th-century trust law of England, Therefore, in principle, not only trustee's personal creditors, but also trust creditors could not reach the trust property directly. However, where the liability was properly incurred in the performance of the trustee's duties and powers as trustee, the Code allows the trust fund to be directly liable, whether the trustee has the right of indemnity or not. This exception is the most peculiar aspect of the Korean trust law in comparison with the English trust law. In English trust law, the trustee is personally liable to the full extent unless in the contract with the creditor there is a provision limiting liability. The trustee is entitled to indemnity out of the trust estate only if she was not at fault in incurring the liability. The creditor could reach the trust estate indirectly through the trustee's right of indemnity. On the other hand, the creditors of the Korean trust could reach the trust estate directly as long as they have rights properly incurred in the performance of the trustee's duties and powers as trustee. Some commentators argue the trust estate is liable even if the trustee lacks the capacity or due authorization. They also argue the victim of a tort committed by a trustee in the administration of the trust should be entitled to have recourse to the trust estate, irrespective of any indebtedness of the trustee to the trust estate or of any breach of the trustee's duties. The Supreme Court seems to accept the argument. However, the author contends the result could not be achieved by the interpretation of the Code. Although we need to consider the changed business circumstances, that does not mean the judiciary could interfere in the legislature's affair as it pleases.