형평법상 추급권과 신탁의 법리

Tracing in equity has played a pivotal role in protecting the right of the beneficiary of the trust. This paper makes comprehensive study on the concept of tracing in equity and how tracing in equity can be applied to the trust for the purpose of securing the separateness of the trust property and preserving the trust asset, especially in the situation where the trust fund has been commingled with trustee's individual fund. Further, this paper explains that equity has developed the legal principle that the beneficiary can assert his preferential right against anyone even when his trust fund has been mixed with trustee's individual fund based on tracing in equity. Also equity has set up a well-established principle that the trustee whose unlawful act brings about an evidential difficulty will have that difficulty resolved against him such as Re Hallett's Estate rule. The concept of tracing in equity can offer meaningful implications in interpreting the Korean trust code(hereinafter “the Code”). According to the Code, the beneficiary can claim the rescission right, entitling the beneficiary to rescind the transaction between the trustee and the contractual party (the third party) in case where the transaction has been proved to breach the trust purpose. Such rescission right can be deemed as a modified version of the tracing in equity. Article 27 of the Code can be said to expand the scope of the trust asset by entitling the beneficiary to claim his right over the substitute of the original trust asset. This is also in line with tracing in equity; thus, the concept and function of tracing in equity may be taken into consideraton in interpreting Article 27. Lastly, in the case where the trust fund has been commingled with the trustee's individual fund and the trustee has expended the commingled fund, Article 29 of the Code can be applied. In such instances, Article 29 may be interpreted in such a way that the trustee should bear the loss arising from the evidential difficulty on the ground that he has failed to perform the duty not to commingle. This means that Article 29 of the Code can be construed as admitting equity principles to a greater extent in inflicting the loss on the trustee who contravened the duty not to commingle.