信託法上 受益者의 受益權의 意義와 受益權抛棄

The definition of a beneficiary s “interests of the beneficiaries and it s waiver under the Trust Act

1. Taking the right of the ‘interests of the beneficiaries which has the core statue in the system of trust is the most important thing for the beneficiary. The definition of the ‘interests of the beneficiaries is usually understood in two ways. That is to say, the one meaning is, in a broad sense, a combination of rights in personam and right in rem. And the other is, in a narrow sense, a claim of performance to ask. But it is a more convenient way to understand or adopt the concept of it separately in a different way. Therefore I suggest that it would be more efficient to understand the beneficiary-right in a narrow sense is a claim of performance to benefit-of-trust(die Leistung in German) and in a board sense is a monitoring function to trust. In this circumstance, the concept of the interests of beneficiaries could be understood as some kinds of special claims which has the character of right in rem. Apart from this concept, I suggest to adopt the concept of performance claim for the obligating trust and system of injunction which could enhance the statue of beneficiary. 2. There are many opinions on the Trust Act §42 which includes the effect of a waiver of the interests of the beneficiaries. But I think that it could be allowed in both self-settled trust and non-self-settled trust. And in this case, the beneficiary could be escaped from the trustee s demand, or the right of indemnity based on the Trust Act § 42 (2). This study examines effects of the case of non-self-settled trust not like the self-settled trust. Therefore, even if the beneficiary would take benefit of trust, his obligation which is already happened could be exempted from under the trustee s the right of indemnity based on the § 42 (2) including the waiver of the interests of the interests of the beneficiaries.