非公益 目的信託에 관한 一考察
Non-Profit Purpose Trust in Offshore Financial Center and its Implication to the Korean Trust Law
0
조회
0
다운로드
6
인용
0
참고문헌
키워드
초록
Abstract
Recently, Korean Ministry of Justice is preparing a revision of the Trust Code. Although the details of the bill are yet to be released, it has been reported that the non-profit purpose trust(NPT) will be allowed in the new code. Existing trust code does not have provisions regarding the NPT. Whether it is possible to settle a NPT has been a hotly debated issue in Korea. In this article, the author explains the NPT of the offshore financial center(OFC) and the discussion about its recognition in the onshore jurisdictions. Because of not only its practical value but also its theoretical implications, careful scrutiny of the discussion would be helpful for the legislation and interpretation. In the OFC jurisdictions, the NPT is one of the attractions which allure the rich all over the world. Common features are: the abandonment of the beneficiary principle, introduction of the "enforcer" instead of the government official to enforce the trust, and the denunciation of the rule against perpetuities. Scholars in onshore jurisdictions argue for or against the recognition of the NPT settled in the OFC. The main difference stems from the different understandings of the beneficiary principle. Some scholars maintain that the beneficiary principle is all about the enforcement of the trust. Others argue that the principle is related to the common law/equity dichotomy. As we do not have the dual system of law as they do in the common law countries, it is presented that there would be no theoretical obstacles for the legislation of the NPT in Korea. However, related issues need to be discussed as well. For example, we would need somebody who could enforce the trust, as there would be no beneficiary in the NPT. Moreover, we need to discuss the desirability of the perpetuity rules in the NPT. The author argues the perpetuity rule is not needed in Korea, as we could settle the problem of the commerce with the rule of the public policy.
참고문헌 (28)
- 李重基, "李重基" (2007), 三宇社
- 崔東軾, "信託法" (2006), 법문사
- 新井 誠, "信託法, 第3版" (2008), 有斐閣
- 四宮和夫, "信託法(新版)" (1989), 有斐閣
- 松本 崇, "信託法" (1972), 第一法規
- 能見善久, "現代信託法" (2004), 有斐閣
- 山田 昭, "信託立法過程の硏究" (1981), 勁草書房
- Baxendale-Walker, Paul, "Purpose Trusts", Butterworths, ~ (1999)
- Glasson, John, "International Trust Laws, 2 vols" (1992), Wiley & Sons
- Glasson, John, "The International Trusts, 2nd ed." (2007), Jordan Publishing
- Hayton, David, "The Principles of European Trust Law", Kluwer Law International, ~ (1999)
- McKendrick, Ewan, "Commercial Aspects of Trusts and Fiduciary Obligations" (1992), Clarendon Press
- 석광현, "국제금융에서의 신탁과 국제사법", BFL, (17), pp.60~ (2006)
- Ausness, Richard C, "The Offshore Asset Protection Trust: A Prudent Financial Planning Device or the Last Refuge of a Scoundrel?", Duq. L. Rev., 45, pp.147~ (2007)
- Duckworth, Antony, "STAR Wars: the colony strikes back", Trus Law International, 12, pp.16~25 (1998)
- Duckworth, Antony, "STAR Wars: smiting the bull", Trust Law International, 13, pp.158~168 (1999)
- Duckworth, Antony, "The Trust Offshore", Vand. J. Transnat’l L., 32, pp.879~ (1999)
- Ho, Lusina, "The Reception of Trust in Asia: Emerging Asian Principles of Trust?", Sing. J. Legal Stud., 2004, pp.287~ (2004)
- Howard, Carly, "Trust Funds in Common Law and Civil Law Systems: A Comparative Analysis", U. Miami Int’l & Comp. L. Rev., 13, pp.343~ (2006)
- Reid, Kenneth G.C, "The Idea of Mixed Legal Systems", Tul. L. Rev., 78, pp.5~ (2003)
- Dyer, Adair, "International Recognition and Adaptation of Trusts: The Influence of the Hague Convention", Vand. J. Transnat’l L., 32, pp.989~ (1999)
- Hansmann, Henry, "The Functions of Trust Law: A Comparative Legal and Economic Analysis", N.Y.U.L. Rev., 73, pp.434~ (1998)
- Hayton, David, "Principles of European Trust Law, in Modern International Developments in Trust Law 19", David Hayton ed., Kluwer Law International, ~ (1999)
- Hilliard, Jonathan, "On the irreducible core content of trusteeship-a reply to Professors Matthews and Parkinson", Trust Law International, 17, pp.144~151 (2003)
- Matthews, Paul, "Shooting STAR: the new special trusts regime from the Cayman Islands", Trust Law International, 11, pp.67~71 (1997)
- Matthews, Paul, "STAR: big bang or red dwarf?", Trust Law International, 12, pp.98~100 (1998)
- Matthews, Paul, "Trust Protectors and their supernumeraries: Part I", Trust Law International, 20, pp.180~ (2006)
- Matthews, Paul, "Trust Protectors and their supernumeraries: Part II", Trust Law International, 20, pp.235~ (2006)