수탁자의 이익상반행위의 효력

초록

The Korean Trust Code art.33 declares trustee’s duty of loyalty. The trustee’s duty to act with loyalty means that the trustee must act solely in the interests of beneficiaries. The trustee must not place himself in a position where his own interests might conflict with those of beneficiaries. The no conflict rule is the basic rule governing fiduciaries. The art.34 comprehensively prohibits trustee’s acts which may cause conflict of interests with beneficiaries, unless the acts were authorized by the terms of the trust, approved by the court, or consented by the beneficiaries. But the art.34 itself doesn’t provide the validity of the trustee’s acts in conflict of interests. This article attempts to provide a reasonable way of construction based on a brief comparative overview and analysis of cases and opinions on the art.34 formed before the amendment : the validity of trustee’s acts in conflict of interests should be determined in accordance with the types which cause conflict of interests. Trustee’s acts including self dealing and transaction between trust funds which come under the art.34 (1) 1 to 4 are void, but those including indirect self dealing which the art.34 (1) 5 is applicable to are valid. In the latter case beneficiaries can make the trustee’s acts void subject to the art.75. This type based construction corresponds to the legislative purpose of the provision and can protect the trust funds as well as the transactions.

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