Cy-Pre｀s 原則(可及的近似解釋의 原則)에 關한 考察 = The Cy-Pre｀s Doctrine

다국어 초록 (Multilingual Abstract)

The Cy-Pre`s doctrine exhibits an important existence value as a rule of the will construction in charitable trusts, especially in the trusts which have an intention on attaining the public benefit settled by virtue of testament. For where the purpose indicated by the testator is impossible, impracticalle of illegal, it is a question of whether the charitable trust may be continued or not. In such cases, it is called the Cy-Pre`s doctrine which continues the property devised for the charitable purpose.
Even when the purpose indicated by the testator is impossille, impracticable of illegal, the property may be applied by the courts for a purpose which resembles the original purpose as nearly as possible. It is commonly stated that the term Cy-Pre`s means "as near as possible" in law.
There are two conditions in applying the Cy-Pre`s doctrine. The first condition is that the Cy-Pre`s application is permitted where the testator had a clear, general charitable intention. The legal meaning of general charitable intention is not specified and concrete but the abstract intention. The second condition is that the charitable purpose is impossible to give effect to the testator's expressed intention. In such cases, it must be considered possible to distinguish between initial and subsequent impossibility. Many decisions have established the principle that, where there is a gift that is impossible to give effect initially, if the testator has shown a general charitable intention, the gift will be applied Cy-Pre`s doctrine, but there is no need to show a general charitable intention in the subsequent impossibility.
Moreover, after the charitable purpose has been attained, if there are surplus charitable funds, the question is raised whether the Cy-Pre`s doctrine may be applied to the property or not. Surplus charitable funds are dealt with as the problem of subsequent impossibility in general. In some cases, although it is dealt with as the problem of initial impossibility, the courts have decided in favour of a CyPre`s application of surpluses without any inquiry into the testator's intention at all. Where there is surplus of charitable funds, the general charitable intention is immaterial.
In U.S.A. the application of the Cy-Pre`s Doctrine is much the same as that of England, and Restatment §399,400 show it.
In Korea there are two types in the legal systems as a means to realize the charitable activites, that is, the juridical foundation under the Civil Law and the charitable trust under the Trust Act. It appears that there are provisions that correspond with the Cy-pre`s doctrine in the Korean laws, viz., sections 73 in the Trust Act and section 80 in the Civil Law.