수탁자의 변경과 신수탁자의 책임제한에 관한 연구 (대상판결 : 대법원 2010. 2. 25. 선고 2009다83797 판결)

Until recently, we have not had enough study or precedents on the trust law in Korea. But recently, we have some meaningful precedents of the Supreme Court. The decision annotated here is a good example. It is meaningful because it gives the guideline for the legal relation when there comes a change of trustee. This essay analyses the decision and suggests like hereunder. First, this essay touches the issue of the general succession from an ex-trustee to a new trustee. The Supreme Court precedents including the one annotated here says, ① When a trustee is changed to a new one, there is the general succession between them. ② Even when an ex-trustee and a new trustee conclude a contract that some of legal relation might not be transferred to a new trustee, it is invalid because such a contract is against compulsory provisions. ① is right. But this essay insists that ② is not right and should be repealed by the Supreme Court. It is because such a contract has no power against the third party. The third party has no chance to get damage from such a contract. There is no reason not to make effect such a contract between the contracting parties. Second, this essay checks up the issue of what form a main sentence should have in a judgement when the new trustee's liability is limited. It agrees with the Decision's conclusion that the expression, 'within the trust property', should be used rather than sum of money. Moreover, it studies the issues on delay interest and litigation costs.