충실의무에 대한 사적자치 : 충실의무의 부과이유와 그 해소장치를 중심으로

It is said that fiduciary duties in particular the duty of loyalty have been imposed upon trustees by the judiciary to check their selfish human nature of putting their interest prior to that of their beneficiaries. This article investigates whether and how the strictness of fiduciary duties can be modified. As the fiduciary law is developed to protect beneficiaries' interest in particular financial interests from the trustees, it is argued here that the beneficiaries as the objects of such fiduciary duties are able to negotiate with the trustees and compromise trustees' duty of loyalty in return for lower compensation etc. Korean Trust Act stipulates three ways to compromise and modify trustees' duty of loyalty. Firstly, the strict nature of fiduciary duties can be modified through executing a trust agreement imposing less onerous terms. Secondly, a trustee can also be exonerated from the strict duties by disclosing his conflicting interest and obtaining consents from his beneficiaries. Finally, such modification can be accomplished through obtaining a court approval. In addition, it is argued here that such conflict of interest can be managed and dissolved to the extent that the trustee pursues their common interests with his beneficiaries. There are also some certain circumstances in which applying standard of reasonableness to trustees' activities is preferable to the strict fiduciary duties. One typical instance is where a trustee seeks an indemnification for their cost of trust administration from trust properties. Although a trustee's seeking reimbursement for his spending takes the form of self-dealing, the strict fiduciary standard for self-dealing does not apply here. In so far as the trustee's original spending for his trust administration is carried out in accordance with its trust purpose, his seeking reimbursement for the spending can only be regulated by reasonableness standard.