信託法上 受益者의 信託違反 處分行爲 取消權

A beneficiary’s right of rescission under the Trust Act

&nbsp;&nbsp;(1) The purpose of this study is to analyze a beneficiary&quot;s right of rescission under the Trust Act §52.<BR>&nbsp;&nbsp;According to the Trust Act §52, the beneficiary can rescind a trustee&quot;s dispositions of the trust property when the trustee has committed a breech of trust of main object. And the beneficiary can do restoring of the trust property.<BR>&nbsp;&nbsp;But, the effects of his rescission have binding power to not only the trustee(transferor) but also a transferee(the third person) and a new transferee who has dealt with former transferee. So it is, what is called, a peculiar system in trust.<BR>&nbsp;&nbsp;Because of this uniqueness, it will inflict a unexpected damage on the third person, who has deal with trustee, that the beneficiary exercises his this right. So the section 52 stipulates the many requirements.<BR>&nbsp;&nbsp;The trustee&quot;s dispositions caused the breech of trust of main object is especially important requirements. And they mean the trustee&quot;s dispositions out of his power.<BR>&nbsp;&nbsp;Especially the breech of the &quot;duty to exercise reasonable care and skill&quot; and &quot;duty of loyalty&quot; will become at issue in the various breech of trustee&quot;s duties.<BR>&nbsp;&nbsp;(2) The control of interests between the beneficiary and the third person is one of the most important subjects. And the beneficiary can rescind the trustee&quot;s dispositions of the trust property when the trustee has committed the breech of trust of main object in the Trust Act §52.<BR>&nbsp;&nbsp;But there are some problems about this subject in the existing theory. One theory explains that §52 for the control of interests is a policy clause without theoretical explanation. The others explain it regardless the nature of interests of the beneficiaries.<BR>&nbsp;&nbsp;Therefore, to solve these problem, it is considered that the necessary of study to the construtive trust in the Restatement(2nd) of Trust §288.