일본 신탁법제의 발달에 관한 소고

Abstract

The Korean Trust Act has been in force for more than 40 years in its original form. Its model is the Japanese Trust Act, which was made based on the Anglo-American trust law in the 19th centuries. To explore the direction of the revision of the trust law in Korea, this paper introduces the development of trust legislation and institution in Japan. In Japan, the Trust Act and the Trust Business Act were established in 1922. The first revision of the Acts were made in 82 years. In 2004 and 2006 Japan made several fundamental changes within the Trust Business Act and the Trust Act in an effort to respond to a changing business environment and thus, the amendments to the Act give more flexibility to trusts businesses. The main features of the amendments are as follows: Firstly, the restrictive scope of entrustable assets is lifted, and any and all property rights are included as assets for entrustment to the trustee. Secondly, the duty of care, which is one of the basic duties of the trustee, should be a default rule. And we need to formulate a provision about the duty of loyalty. Thirdly, detailed regulations and guidance with respect to the duties and liabilities of trustees are provided. Fourthly, the door to the business of selling beneficial interests of trusts is widely opened. Finally, foreign corporations can be engaged in trust business. The Japanese amendments draws admirable attention from Korean legal scholars in the following contexts. Under the Trust Business Act of Japan, as trusts become more flexible instrument to accommodate a variety of purposes, they will be used with even greater frequency compared to other types of structured finance vehicles. The Act is survived in a very rapidly changing financial environment. The introduction of the business of selling beneficial interests of trusts into Japan will promote the liquidity of the beneficial interests and thus the interests will be a good object of investment.