신탁제도를 활용한 재산 관리방법의 논의 - 유언신탁 및 유언대용신탁을 중심으로 -

Abstract

The purpose of this study is to find the eligibilities not only to utilize the Will Trust and the Substitution Trust for Will as an asset management, but also to supplement the Will Trust (including the Substitution Trust for Will), will, inheritance and system of a legal portion of an heir in terms of the policy. This study concludes that the Will Trust (or the Substitution Trust for Will) is eligible to apply in Korea on the basis of the several results : i) the revised bill has strong legislative basis, which clearly defines the Will Trust including the Substitution Trust for Will, ii) the senior population over 65 year-old tends to increase steadily, iii) the tendency to bequeath a inheritance to family including sons and daughters has been settled down for a long time. The foreign cases support the results : i) in the US, the Will Trust and the Revocable Trust have been used as a way of the inheritance, ii) in Japan, the number of the Will Trust has increased since the New Trust Act was activated. However, we find that the Will Trust (including the Substitution Trust for Will) has not been apparent in terms of its interpretation to apply for the inheritance of the civil law, the will and system of a legal portion of an heir and asset management. First, it has not been clear when the Will Trust including the Substitution Trust for Will would be activated. Second, it has not uncovered how the Substitution Trust for Will has related to the law in terms of whether or not the Trustee is alive. Third, the duration for the Serial Trust for the beneficiary is not apparent. Last, the relationship with the legal portion of an heir is most important. That is, once the legal portion of an heir is accepted, the inheritance delivered by a will would return to a claimant of a legal portion of an heir, which may lead to the result against the intention of a testator. The Will Trust (including the Substitution Trust for Will) is not very different. Hence, the earlier the Will Trust (including the Substitution Trust for Will) is legislated or makes the legislative issues clear, the more important role it can play as a tool for asset management in terms of the eligibility and the clarification of the relationship between the civil law and the trust law.