신탁수익권과 강제집행 - 수익권에 대한 압류의 효력범위에 관한 고찰 -

In practice, beneficial interest in a trust is deemed to be an enforceable right and civil execution thereto is of high importance to practitioners. This paper deals with several legal and practical issues in drawing limits with regard to foreclosure of beneficial interest by trust beneficiary’s creditor(s), in order to provide interpreting guidelines when attaching trust interest. Under the reformed Korean Trust Code enacted in July 26, 2012, although the gist of beneficial interest is the right for the trust beneficiary to avail himself/herself of the trust property (mainly cash or property), the beneficial interest as the whole includes any or all rights and/or interests empowered to the beneficiary, indicating that the beneficiary should be afforded more protections than general creditors with regard to the trust. However, the creditors of the beneficiary are only permitted to reach the beneficial interest in a trust (not trust property itself due to the asset partitioning function of trusts) and, in the civil execution process, to attach such the interest in the hands of a third party, i.e, trustee. When creditors attach the interest owned by beneficiary in the trust, the writ of attachment shall apply not only to the principal but future interest which would accrue and be distributed to the beneficiary after the attachment goes into effect. For a self-settled trust, the settlor is prohibited from changing the beneficiary in manner which would infringe upon the court’s attachment order. For a third-party trust, the settlor is allowed to change the beneficiary if the trust is revocable trust. The trust parties, the settlor and the trustee, still have the power to change the trust itself without affecting the writ of attachment representing the creditor’s interest. Also, in the case of a self-settled trust, even the right to change the beneficiary has been granted to the trustee, a change in the beneficiary would have the same effect as disposal of the beneficial trust; therefore, foreclosure prohibits such change in the beneficiary. A spendthrift trust provision refers to particular language contained the trust instrument which creates an irrevocable trust that prevents creditors from attaching beneficial interest before the interest is actually distributed to the beneficiary. Many jurisdictions in the United States recognize the validity of spendthrift provisions; several states (Alaska being the pioneer) have even amended their laws to permit spendthrift provisions in self-settled trusts. However, the English courts have not accepted spendthrift provisions. When considering the various aspects of major academic and practical viewpoints, it appears unlikely that the Korean courts would be willing to accept spendthrift provisions. Also this paper provides detailed legal analysis on the recent Korean Supreme Court case which ruled that attachment to the beneficial interest covers the beneficiary’s distributed interest in terms of terminating the trust (Supreme Court case No. 2013Da15654 decided on March 24th, 2016).