신탁과 유류분에 관한 연구

Abstract

The interest in the use of trusts for inheritance protection and management grew following the revision of the Trust Act in 2005, becoming a potential business opportunity for specialized trust companies. However, relevant judicial precedents have yet to be accumulated due to the very rare number of cases where trusts are actually used. Against this background, this paper examines a number of issues as described below involving an inheritor’s acquisition of the right to benefit when a trust is set up for inheritance. The paper first notes that the acquired benefit by an inheritor could be property received as a gift, and thus, considered as a matter of course a subject of claim for return of legal reserve. On this point, the views in Korea and Japan are mostly consistent with a few exceptions. Second, it points out that the right to benefit could be the subject matter of claim for the return of legal reserve of inheritance (also known as “forced share”) and the beneficiary could be the counterparty of said claim, and that the legal reserve of inheritance should be calculated as the value of a conditional right or a fixed-term right. The paper goes on to explain the complicated issues involving a trust with consecutive beneficiaries, such as the likelihood of each beneficiary becoming the counterparty of the claim for the return of legal reserve. In such case where the right to benefit is separated, this could result in the trust being terminated and the purpose of setting up the trust becoming infeasible. Based on the above analysis, this paper emphasizes that sufficient planning is required to set up an inheritance trust in view of the fact that there are no definitive judicial precedents or interpretations related to issues of legal reserve of inheritance.