채무자의 신탁재산의 처분 등 일련의 행위에 대한 사해성 판단 - 판례에 대한 비판적 검토를 통하여 -

When the debtor/settlor terminates the trust in order to dispose the trust property or transfer the settlor’s status, acquires the trust property and transfers it, the creditors may file a suit for cancellation of the fraudulent act. But the Supreme Court sometimes neglected the debtor's beneficial right which belonged to his patrimony and judged only on the disposition of trust property, or sometimes overlooked the legal relationship following the termination of the trust. It treated even the illegal cancellation of trust contract as a valid termination of trust. However, what belongs to the debtor’s patrimony is not the trust property itself, but the beneficial right. If the debtor disposed the trust property, terminated the trust, recovered and transfered the trust property successively for the same purpose, it should be evaluated as an act collectively. In addition the changes in patrimony should be noted. When the trust is terminated for the purpose of disposition of trust property, although the beneficial right which belongs to the debtor’s patrimony is expires, the value of patrimony increases, because the trust property devolves on the debtor, the beneficiary under the statutory trust. But the debtor transfers the trust property right away, as a result there can be a reduction of beneficial right, and the disposition of trust property can be a fraudulent act. But if the beneficial right has no asset value, there is no changes in the patrimony. Even if the beneficial right has asset value, the debtor can realize his right through the disposition. So the debtor’s disposition fundamentally does not constitute a fraudulent act. When the disposition causes the reduction of patrimony exceptionally, the price of beneficial right should be recovered to the patrimony.