상사신탁의 특성과 법적 쟁점에 관한 연구

Abstract

Trusts have been commercialized. Historically, trusts started from civil trusts and developed based thereon. However, trusts are actively utilized for commercial purposes these days. In South Korea especially, trusts were introduced as financial products and commercial trusts have been overwhelmingly used. Parties to the commercial trusts enjoy the benefits of the trustʼs functions such as bankruptcy-remoteness, flexibility, transfer of property right and trusteeʼs specialty. Commercial trusts have some features distinguished from civil trusts which are usually donative. The beneficiaries of commercial trusts are similar to investors rather than passive ones enjoying the profits without consideration. The role and the authority of commercial trustsʼ trustee expands to include development of lands, investment of assets, management of business, etc, beyond mere management of trust assets. However, the Trust Law is mainly based on civil trusts, which makes some problems in commercial trusts. In this respect, it is encouraging that the amendment of the Trust Law in 2012 reflected demands from commercial trusts. The limited liability trust, beneficial certificate issuance trust, business trust are the representative ones the same amendment newly inserted considering commercial trusts. However, it is unsatisfactory that some matters were excluded from the amendment, such as delegation of trust affairs, methods to manage trust money. In addition, various legal issues relating to commercial trusts may arise under the amended Trust Law and it needs to review and discuss about them. For example, because the commercial trusts have features differing from the donative trusts, it is necessary to make new standards for duties of trustee including duty of care and duty of loyalty. As the commercial trust’s trustee does various matters such as investment of assets, management of business, etc., the liabilities of a trustee needs to be limited. In this regard, it is expected that a limited liability trust will be utilized for that purpose. Since the beneficiaries of the commercial trusts are similar to investors, it is necessary to consider how to protect them. In the meantime, it is a problem that the Financial Service and Capital Market Act does not reflect the amendment of the Trust Law. In order to activate the commercial trusts, the Financial Service and Capital Market Act shall be amended soon to permit the new ones inserted by the amendment of the Trust Law including the beneficial certificate issuance trust and business trust.