유언대용신탁에서 생전 수익자를 위탁자로, 사후 유일한 수익자를 수탁자로 정한 경우의 효력 - 대법원 2024. 4. 16. 선고 2022다307294 판결을 중심으로 -

Abstract

As our society rapidly progresses toward an aging society, the revised Trust Act has introduced a trust as will substitute, which was not in the old Trust Act, in order to reflect the will of the deceased as much as possible and establish a flexible property succession system. Since the introduction of the trust as will substitute, the related market has grown rapidly, and inevitably, disputes surrounding it are also on the rise. The decision at issue is great significant in that it explicitly confirmed that ① in a trust as will substitute, if the trustee becomes the sole beneficiary, it cannot be permitted in violation of Article 36 of the Trust Act, ② in the case where a trust is established as above, Article 5, Paragraph 2 of the Trust Act, which regulates trusts with illegal or impossible purposes, is applied, making it invalid, ③ even in such cases, the part where the settlor designates himself as the beneficiary and has the trustee manage the trust property until his death can be validly maintained in accordance with Article 5, Paragraph 3 of the Trust Act. However, it is regrettable that the decision at issue did not strictly distinguish between a beneficiary of remaining property and a rightful person on whom trust property devolves, and did not judge the possibility of analogical application of Article 101, Paragraph 2 of the Trust Act in a situation where a beneficiary of remaining property and a rightful person on whom trust property devolves was not designated in the trust deed.