자녀양육신탁의 효용과 쟁점

Abstract

In constrast to the situation of Anglo-American countries, the child support trust is a rare thing in Korea, despite its long history of trust law. In this article, the author tries to explain the usefulness and structure of the child support trust in terms of Korean trust law. First, the author argues that the child support trust could be used as an incentive for child support payment. At least some of non-custodial parents seems to delay or deny the payments because of concerns that the payments could be used not for the child or children of their broken marriage, but for the custodial parent or her/his newly married spouses or their child or children. If it could be guaranteed that the payment could be used soley for her/his child or children, he/she would be more willing to pay the support. According to the author, the child support trust could provide that guaranty. Second, although in principle, the child support trust should be settled only after the parents agreed to, the author maintains that the family court could order the non-custodial parent to settle the trust for the benefit of the child or children, in certain limited circumstances. Third, the author predicts that the close family member or a friend of the trustor (non-custodial parent) could usually be the trustee of the child support trust, because the size of the trust property is comparatively small, which would make the trust companies less inclined to serve as trustees for the child support trust. Moreover, Capital Market Law of Korea, which provides the minimum standard of capital for the trust business, makes it almost impossible for the lawyers, paralegals or social welfare NGOs to serve as trustees. Therefore, there should be careful assistance by the lawyers for those who are going to serve as trustees, especially in the drafting stage of the trust settlement process.