채권자취소권의 관점에서 본 신탁법상의 취소제도 - 사해신탁취소권을 중심으로 -

The fraudulent transfer can be revoked by the creditor. When a debtor settled a trust as a mean to avoid subjecting his/her assets to creditor’s claim, the trust can also be revoked under the general principle in the Civil Code. However this right of revocation is provided under somewhat different requirements and effects in Article 8 of the Trust Act. Within the limitation period for attacking a fraudulent transfer the creditor of the settlor can revoke the settlement of the trust and restitute the trust property, regardless of trustee’s recognition on the fraudulent transfer. The creditor may revoke it against the trustee only when all the beneficiaries are in bad faith. If not, the right of revocation is permitted only against the bad faith beneficiaries. These intent to protect bona fide beneficiaries as well as trustee. The fundamental features and their characteristic play an vital role on the construction and application of the provision. It is important to keep a balance between the need to maintain the debtor’s property for the creditor’s interest, the freedom to dispose of debtor’s own property, and the need to ensure the transaction security too. But there is considerable uncertainty in the provision regarding the claim to transfer a beneficiary right and the joint liability of settlor and beneficiary or trustee. This article tries to propose the reasonable construction corresponding to trust scheme as well as the policy of the trust law in comparison with the general right of revocation. In addition it suggests the legislative adjustment to prevent the fraudulent use of trust.