신탁법상 공평의무 및 구제수단에 대한 연구 — 영미법의 논의를 중심으로 —

The duty of impartiality is when a trustee invests, manages, and distributes the trust property, the trustee must strike a balance between beneficiaries. However, the precise meaning of the trustee’s duty impartiality is a matter of court’s interpretation. Currently, there is a paucity of cases about the duty of impartiality, especially concerning how a trustee strikes a balance. Thus, this article undertakes a comparative examination of the duty of impartiality in trust law within Anglo-American jurisprudence. Some academics have noted that the duty of impartiality is a part of a duty of loyalty. However, given how the duty of impartiality operates, it would be better to understand that the duty of impartiality subsumes both a duty of loyalty and a duty of care. In the United States, there is the duty of impartiality as well as a duty to make trust estate productive, which can be conflicting with each other. In other words, as with the emphasis in prudent investor rule, a trustee should invest to maximize the total return. But in doing so, it is possible not to balance the interests of each beneficiary. Thus, in some states, the act grants trustees a power or discretion to adjust after investment yields higher income. In other states, the act authorizes trustees to elect to give effect to income rights by suitable unitrust distributions. The above approaches could be acceptable in South Korea when the court interprets the duty of impartiality. Lastly, as the legislature in South Korea assumes that a duty of impartiality is a part of a duty of loyalty, a disgorgement remedy set out in article 43(3) will also apply to the duty of impartiality. However, this article argues that there is no basis for applying a disgorgement of profits to the duty of impartiality, and thus it should be amended.