受託者가 破産한 경우의 信託法律關聯 硏究

Until today, the studies on the law of trusts in South Korea have not been conducted enough specially in the overlapped field between trust law and the bankruptcy law. This article examines and analyzes focusing on the legal implications where the trustee becomes bankrupt. First of all, even not a direct issue in this article, I would like to suggest that useful terms for the law of trust be clearly and accurately defined for further studies on the law of trust. This article covers four issues on the legal implications where the trustee becomes bankrupt and makes some recommendations as follows: Firstly, this article examines the way how a beneficiary's creditors file the claims against the trust assets or against the trustee's bankrupt estate when the trustee becomes bankrupt. Also, the issue whether who should have the right to repossess any property not belonging to the bankrupt from the bankrupt estate when the trustee becomes bankrupt is dealt; Secondly, this article deals with the matter of appointing a new trustee. Under the Trust Act of South Korea, a trustee's duty should be terminated when the trustee becomes bankrupt and the bankruptcy trustee is authorized only to maintain the trust estate until a succeeding trustee is appointed. However, in reality, against the Trust Act, the bankruptcy trustee continues to conduct the duties of trustee long after. I would like to argue that this practice should be changed even it provides convenience. As for appointing a succeeding trustee, I also examine some problems on legal proceedings and introduce a recent Supreme Court Decision 2006Da22320 delivered on September 11, 2008, commenting its holdings; Thirdly, I recommend that the duties of trustee should not end even when a debtor business rehabilitation procedure or an individual rehabilitation procedure is commenced on him; Lastly, I argue that the ipso factor or bankruptcy clause of the trust instrument can still be valid even when the trustee becomes bankrupt since the trust assets does not pass to its trustee in bankruptcy, not belongs to the bankruptcy estate.