신탁법 개정의 쟁점

Abstract

Korean Ministry of Justice is working on the revision of the Trust Code of Korea. According to its schedule, the bill will be introduced to the National Assembly by the end of this year. In this article, the author discusses some issues related to the revision. First, the revised code is reported to have some provisions regarding the declaration of the trust. Although this method of settling the trust has been well known in the Anglo-American jurisdictions, it is presented that some measures need to be prepared lest the new institution should be abused. Second, the existing Trust Code has a provision(Section 8) about avoiding the trust defrauding the settlor's creditors. It states that the settlor's creditors could avoid the fraudulent trust even though the trustee was not aware of the settlor's intent to defraud her creditors. Some scholars and practitioners argue the article should be revised so that if the trustee did not know the fraudulent intent, the trust should stand. The author maintains that the existing article should remain intact, as this article relates to a basic concept of the trust. Third, the purpose trust is reportedly going to be introduced to the new code. There has been some discussions about the validity of the non-charitable purpose trusts in the UK and the US. The author argues there would be no theoretical obstacles for the non-charitable purpose trusts in Korea, but the bill need to be cautiously legislated against the possibility of abuse. Fourth, the new code might introduce a new concept of "limited liability trust". In this new scheme, the trustee's liability would be limited to the trust property, not extending to her own property. The author supports the introduction, although it has some theoretical problems. Last, there would be the bankruptcy of the trust property as well. This new concept relates to the unlimited liability of the trustee. However, if we introduce the limited liability trust, and if the trust property should be not enough to pay all of the trust debt, the bankruptcy system would be needed. For the trust property to be bankrupt, it would be necessary for the trust property to be dealt like a legal entity. Aside from the theoretical impediments, the author supports the plan for practical reasons.