사업신탁에 관한 입법론적 고찰

Abstract

In the year 2011, the Korean trust law revised on the whole and adopted a variety of provisions which opened doors to the formation of business trust. However, although the objective of the revised law is to promote the trust system in various areas, it might be still captured by the traditional mind-set and fail to highlight the unique features of business trust as a form of business organization. So, in order to realize the potential advantages of business trust, considering the recent legislative trends in the two most advanced legislation of business trust, the United States and Singapore, it seems to be supported by its own legislation reflecting the characteristics of the organizational law. According to the review of the policy trends in the two counties mentioned above, this comparative analysis gives an instinctive idea that the independent legislative scope of the business trust, apart from traditional trust, should include a provision that grant the business trust its own legal entity. On top of that, the legislative authority would better consider adopting various promotion policies as follows; (1) securing flexibility in fiduciary duties and rights, (2) reinforcing the protection of the rights of the beneficiary, (3) modifying the succession system of negative properties and employment, (4) introducing the unprecedented concepts such as series trust, conversion and merger of trust, (5) reorganizing the tax system, etc. From now on, further studies are needed to demonstrate the plausible benefits and distinctive characteristics of business trust and the proper legislative system should be ready for implementing this system more effectively. Last but definitely not least, with regard to business trust, paradigm shift, viewing it not as a mere contract but as an business organization, is positively required.