잔여수익권의 특징과 양도방법: 수익권의 불가분성을 중심으로

Where a holder of beneficial interests in a trust intends to assign his interest in the trust, a question may arise as to what interest he intends to assign, and how to assign such an interest. For example, while the assignee may think he is assigned the very status of the holder in the trust, the assignor may regard the assigned interest as a mere specific claim that is to be due and enforecable by the holder against the trustee in the future. In particular, this kind of dispute is more likely to arise in respect of assignment of residual interests at the termination of a trust. Since such residual interests can crystalise as a specific enforceable claim only at the termination of the trust, the assignment of a specific enforceable claim can be practically regarded as that of the residual interests itself. This article explores various ways to determine what interests a holder of residual interests has assigned. One way is to investigate the ‘formality of assignment’ that the assignor and assignee has taken. If any consent of other holders of beneficial interests are required, such formality can be indicative of assignment of the very status of the holder in a trust. Because, fellow holders' consent is necessary only for the assignment of the status in the trust relationship, and should not be necessary for the assignment of specific claims against the trustee. Another way to determine the features of assigned interests is to apply the ‘inseparability of bundles of beneficial interests’ to any assigned interest in question. If the assigned interest is an separable specific interest such as money claims, the assignment of the interest can be carried out separately from the beneficial interest itself. On the other hand, if any intended interest is an inseparable part of the bundles of a beneficial rights, the assignment of the part cannot be accomplished separately from the beneficial interest itself. The intention should be either for the assignment of the status itself or the intention should be void due to the inseparability of the interest. It is arguable where the intended interest is an essential part of the whole interest, the parties' intention to assign that part should be expanded to the other parts of the interests, and thus their intention to assign expanded to cover the assignment of the status itself.