신탁상 발생한 비용의 배분 - 서울고등법원 2012.2.2. 선고 2010나84835 판결을 계기로 -

A trustee has the authority to expend trust funds as necessary in the administration of the trust, and is entitled to reimbursement of their out-of-pocket expenses incurred in carrying out the trust terms. He is entitled to reimbursement from beneficiaries as well as from the trust property(Trust Code art.42(1),(2)). So under the trust code the expenses that were properly incurred are allocated to trustee, trust fund, and beneficiaries successively. But this allocation can be modified by the terms of trust or disclaimer of beneficiary's right. The law does not permit a property owner to force an interest and burden in property on another against his will. A beneficiary need not accept the benefit conferred on him. Generally when a beneficiary receives a notice of the creation of a trust for his benefit, he has a resonable time to decide whether to accept the interest or to disclaim it. If a beneficiary accepts or disclaims the benefits from a trust or interest therein, it is retroactive to the date of trust creation. The disclaimed interest may be absorbed by the interests of other beneficiaries, such as by acceleration of future interests, or otherwise through construction or interpretation. The beneficiary who disclaimed loses the right to all benefits accruing to him and also becomes free from the burden of reimbursement. The Trust Code art.51(3) also declares a beneficiary can disclaim, but it may not be constructed without any restriction. The acceptance or disclaimer is final,and a beneficiary may not change his position after having definitely declared his position regarding the benefits of the trust. When a trust's beneficiary is the same person as its settlor. he cannot disclaim. As a result the beneficiary who pursues the benefits from a trust bears the costs.