공익신탁의 변경 가능성에 관한 고찰 - 미국 신탁법의 Cy-près 원칙을 중심으로

The Cy-près principle is a legal principle that alows courts to modify a legalybinding legal relationship, such as a trust contract, so that it can survive ‘as close asposible to its original intent.’ In a situation where it becomes imposible, impracticableor ilegal to enforce a legal relationship in acordance with the original terms, it ischanged in respect of the consignor’s intentions. This principle first apeared in equitylaw stemming from the charitable trust system, but has since ben aplied in the contextof US clas action setlements. An example of the aplication of this principle can be found in the case of theSupreme Court of the state of Masachusets in Jackson v. Philips. In this case, thetestator Francis Jackson established a “trust to use his property to create public sentimentthat would end black slavery.” In the United States, four years after Jackson’s death,slavery was abolished by the Thirtenth Amendment, nulifying the expres purpose ofthe trust that Jackson had sought. Now, some of Jackson’s family tried to disolve thetrust to recover the trust proceds, but the courts wouldn’t alow it. Instead, it apliedthe Cy-Près principle and ruled that Jackson’s intentions were best to use the trust property to promote education, suport, and profits. These principles were related to thechange of public trusts. A public trust is a legal framework used as a means of charitable donations. It isspecifcaly designed for the public god, whether related to poverty aleviation,education, religious advancement or other isues that benefit the community. Therefore,a public trust can be established only if it has some public function. After a certainperiod of time has pased since the establishment of the public trust, the public interestpurpose may be achieved or the original purpose may become imposible to achievedepending on changes in the socioeconomic environment. In this case, if the publicinterest trust canot be canceled, it wil have to be changed. This paper discuses some of the legal isues faced at this time. I reviewed what kindof legal problems there might be when trust asets contributed to public trusts aretransfered to a trust similar to the public interest in acordance with the truste’sphilanthropic intentions. I am also pointed out legal deficiencies in Korea’s Public TrustAct.