담보신탁과 담보권신탁－부종성과 신탁관리인의 역할, 도산격리성을 중심으로－

Abstract

The revised Korean Trust Act has introduced a new concept of 'security trusts'. Before the revision, settling such a trust was not allowed, because under the Korean security law security holders are supposed to be creditors: in the trusts, the trustee rather than creditors would hold the security interest, thus violating the appendancy requirement of security to its accompanying debt. In addition, under the Korean insolvency law, security holders are not completely free from the effect of reorganization process caused by the debtor or the security provider's bankruptcy. For these reasons, perhaps the most popular security device for Korean financial institutions has been the setting up a 'trust for securing creditors' claims', in which a debtor-settlor or a third party security-provider transfers the entire 'ownership' of his property to the trustee for security purposes. This articles investigates whether and to what extent the appendancy requirement under the Korean security law will continue to apply to the newly introduced 'security trust' by analyzing the practical relationship between the beneficial interests and the secured claim. In particular, the author examines the applicability and its extent of the appendancy nature of the security at the different stages of creating the trusts by a settlor, transferring beneficial interests by beneficiaries, and paying off the debts by a debtor. It also deals with the role of a beneficiary agent regarding its creditor-beneficiaries in complying with the appendancy requirement of connecting beneficial interests to the claims. Finally, the article explores whether and to what extent the security trust can protect the beneficiaries from the event of bankruptcy of the debtor or the security-provider. The articles concludes that the appendacy requirements in the security trust can be met by the appointment of the beneficiary agent, but the trust may not bankruptcy-remote