신탁법상의 상계

초록

Trust fund is treated independently from the personal properties of trustee or another trust fund owned by him. This independence principle of trust fund aims to protect the trust fund, i.e beneficiaries. The rule of prohibition of set-off is a device to embody the principle. Korean trust code art. 20 provides the rule. But it forbids only the set-off between the claim against a third person held in trust and the claim held by him either against the trustee personally or against another trust fund. Thus the resolutions of the many issues on set-off should be resorted to theoretical arguments. The author thinks that the recent amendment of Japanese trust code 2007 could shed a light to our theoretical discussion and legislation. This paper proposes resolution of different classes of set-off referencing the discussions held during the amendment process of the Japanese trust code. The set-off shouldn't be forbidden simply because the claim belongs to trust fund. The set-off needs to be permitted if the third person had no notice that the claim was held in trust when the claim against him was created. Such kind of exceptions can be found when the third person has the claim against trustee as the owner of trust fund and the trustee personally has the claim against the third person. Therefore it is needed to take into account the protection of trust fund and the interest of the parties concerned considering the prohibition of set-off in trust law. Relying on the theoretical argument to resolve the complex issues concerning the set-off has it's own limitation. But to stipulate all the detailed articles of set-off also will have its disadvantage especially in this kind of flexible institution, trust. How to legislate the set-off needs further discussion.

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