공무원범죄의 몰수 특례법상 불법재산의 신탁 - 대법원 2022. 7. 28. 선고 2019두63447 판결의 평석 -

Korean Trust Act Article 22 provides the trust fund shall not be reached, except by the claims of the settlor’s creditors before the creation of the trust, or the claims by the creditors dealing with the trustee in his capacity as such. On the other hand, the “Act on Special Cases Concerning Confiscation of Offenses of Public Officials”(hereinafter “the Act”) provides that the proceeds or substitute assets from certain crimes by public officials can be executed even if the proceeds is acquired by the third person. Would the Act apply even if the proceeds became the trust asset? The Supreme Court of Korea ruled it would, in the case where the state seized the trust property from the proceeds by the crimes of former President Chun Doo Whan, based on the criminal money judgement against him. In this Article, the author argues the ruling’s ground needs to be more accurate. First, when the proceeds from the crimes by public officials(settlor) becomes the trust asset, the trustee “acquires” the proceeds in the sense of the Act. This holds true even when the trust is settled for the creditors of the settlor. Second, the claim based on the criminal money judgment in lieu of the confiscation would be the claim of the settlor’s creditor(the state) in the sense of the Trust Act Article 22. Therefore, the state can execute the proceeds, even though it became the trust asset. Third, the Act applies only when the third party knew the property is the proceeds from the crimes of the public officials. In the trust setting, this third party is not the trustee, but the beneficiary because the benefit of the trust belongs to the beneficiary, not the trustee.