원물이 금전일 때의 신탁법 제43조 원상회복의무와 지연손해금 — 대법원 2020. 9. 3. 선고 2017다269442 판결에 대한 검토 — (Restoration Claim and Delay Damages under Article 43 of the Trust Act When the Original Property is Money)

서지정보

· 발행기관 : 충북대학교 법학연구소
· 수록지 정보 : 법학연구 / 35권 / 2호 / 281 ~ 310페이지
· 저자명 : 이병삼

초록

The subject judgment holds that, with respect to the right to restoration under Article 43 of the Trust Act, when the trust property is money, it is distinguished from a typical monetary obligation, and therefore, payment of delay damages cannot be ordered. The reason why the subject judgment adopts such an attitude seems to stem from the fact that, with respect to damages, unlike general civil law, which adopts the principle of monetary compensation, Article 43 of the Trust Act adopts restoration to the original state as its fundamental principle.
However, the fact that Article 43 of the Trust Act adopts the principle of restoration rather than monetary compensation for damages does not provide a basis for denying the payment of delay damages. The reason for ordering the payment of delay damages in monetary obligations is based on the presumption that, given the ubiquity and importance of money in modern society, it is fair to assume that a benefit equivalent to the delay damages could be gained. Even when the trust property is money, the benefit equivalent to delay damages should naturally be presumed. It is difficult to understand why delay damages are recognized in cases of contract rescission or fraudulent conveyance revocation, where the subject matter is money, but are denied only in the restitution obligation under Article 43 of the Trust Act.
On the contrary, based on the legislative intent of Article 43 of the Trust Act, delay damages should naturally be recognized, and it is reasonable to allow claims for excess damages beyond the delay damages, unlike in typical monetary obligations.
Interpreting it this way provides a reasonable interpretation of Article 397 of the Civil Code and Article 43 of the Trust Act, aligns with the purpose of Article 43 of the Trust Act to protect trust property robustly, and ultimately contributes to the independence of trust property. Denying the payment of delay damages for the restitution obligation of trust property when the subject matter is money, or for a claim for damages that can only be compensated in money, as in the subject judgment, goes against the concept of justice and poses a significant risk of encouraging breaches of the trustee's duties or disregard for the judgment.

영어초록

The subject judgment holds that, with respect to the right to restoration under Article 43 of the Trust Act, when the trust property is money, it is distinguished from a typical monetary obligation, and therefore, payment of delay damages cannot be ordered. The reason why the subject judgment adopts such an attitude seems to stem from the fact that, with respect to damages, unlike general civil law, which adopts the principle of monetary compensation, Article 43 of the Trust Act adopts restoration to the original state as its fundamental principle.
However, the fact that Article 43 of the Trust Act adopts the principle of restoration rather than monetary compensation for damages does not provide a basis for denying the payment of delay damages. The reason for ordering the payment of delay damages in monetary obligations is based on the presumption that, given the ubiquity and importance of money in modern society, it is fair to assume that a benefit equivalent to the delay damages could be gained. Even when the trust property is money, the benefit equivalent to delay damages should naturally be presumed. It is difficult to understand why delay damages are recognized in cases of contract rescission or fraudulent conveyance revocation, where the subject matter is money, but are denied only in the restitution obligation under Article 43 of the Trust Act.
On the contrary, based on the legislative intent of Article 43 of the Trust Act, delay damages should naturally be recognized, and it is reasonable to allow claims for excess damages beyond the delay damages, unlike in typical monetary obligations.
Interpreting it this way provides a reasonable interpretation of Article 397 of the Civil Code and Article 43 of the Trust Act, aligns with the purpose of Article 43 of the Trust Act to protect trust property robustly, and ultimately contributes to the independence of trust property. Denying the payment of delay damages for the restitution obligation of trust property when the subject matter is money, or for a claim for damages that can only be compensated in money, as in the subject judgment, goes against the concept of justice and poses a significant risk of encouraging breaches of the trustee's duties or disregard for the judgment.

참고자료

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