유언대용신탁의 현황과 과제 ―유류분과의 관계를 중심으로―

Abstract

Compared to the will, the trust system as the means of inheritance in Korea has not been used much due to the lack of history or publicity. However, the real reason for preventing the use of the living trust is that it cannot solve the problem regarding forced share system, nor does it have any tax benefits. Eventually, the biggest obstacles revitalizing the trust system as a new method of the property succession is the legal issues surrounding forced share and tax. However, Korean District Court decision was recently issued to the living trust that the entrusted property may not be subject to a claim of return for forced share. The court decision shocked not only the legal profession but also the socio-economic cummunity. In advance, this study explains the current status of the living trust, and look into the relationship between the living trust and the issues of the forced share. With regard to the current status of the living trust, this study introduces the first litigation case and the advisory case related. In addition, this study examines the theories and the recent court decision of whether trust assets can be included in the basic property for the calculation of forced share of heirs. In order for the trust to function properly as a new means of inheritance, it must address limitations and opacity inherent in forced share system and tax. It is hoped that the government will establish socio-economic foundation for carrying out the natural function of the trust which is a method of property succession.