프랑스 제정법상 ‘신탁’ 개념 도입에 관한 소고

Abstract

In February 2007, France, a major civil law country, enacted a new law instituting the "fiducie" as a legal creature of the French statutory regime. As a result, thirty new articles were inserted into the French Civil Code in order to introduce an Anglo-American trust-like relationship, the "fiducie". However, due to the concerns from the fiscal authorities that the new institution would be used for the purposes of avoiding the fiscal obligations or evading other regulatory limitations, the "fiducie" is heavily regulated and confined to very limited use, compared to its Anglo-American counterpart, the "trust". This article purports to introduce the frameworks of the fiducie legislations and to briefly compare them with those of the Anglo-American trust and Korean trust. Part II of this article goes through the historical backgrounds of the fiducie legislations and explains the basic structure of the statutory fiducie. It points out that the fiducie is a hybrid product that is based upon contractual relationship but is also flavored by the Anglo-American trust-like consequences(especially the ring-fencing features of the trust assets). Even though the French legislature did not adopt the separation of legal ownership and equitable ownership under the common law, it achieved functionally similar consequences by virtue of a few statutory provisions taking advantage of the concept of the "patrimoine d' affectation"(fiduciary patrimony). Part III of this article analyzes the essential elements of the fiducie, that is a transaction involving the transfer, by one or more constituent(settlor), of assets,rights or securities, to one or more fiduciare(trustee) who, keeping them segregated from their own patrimony, act so as to further a particular purpose for the benefit of one or more beneficiaries. A fiducie is created by an express contract between the constituent(s) and the fiduciare(s), which must specify beneficiary(s), the duration that may not exceed 99 years, and the purpose of the fiducie and the power of the fiduciare. Fiduciary patrimony is protected from claims by the creditors of the fiduciary(s) as well as those of the constituent(s). The only debts that may affect the properties under the fiducie are the debts that arose in connection with the management of the fiducie. And if the fiduciare acts beyonds his powers, and the third party is aware of this,the contract will be void. A fiducie is void if it is for gift by the constituent to a third party. The formation of the fiducie itself as well as the specific assets consisting fiduciary patrimony are subject to strict disclosure requirements under the centralized national registration system. In the event of insufficiency of the fiduciary patrimony, the fiducie creditors may look to the constituent's patrimony as their common security, in general. For purposes of taxation, the fiducie is treated as neutral and the constituent(s) continues to be treated as the holder of the assets transferred to the fiduciare(s). Based upon the foregoing analysis, Part V concludes that the fiducie incorporated into the French Civil Code adopted an Anglo-American trust functionally. However the fiducie in its present form would be used only in the narrowest fields and also subject to the extreme restrictions imposed on the fiducie due to the fiscal considerations. Nonetheless, it is promising in that the French legislature has provided at the same time a comprehensive package of the statutes to facilitate the new institution, the fiducie(taxation, accounting,insolvency laws as well as the Civil Code), and has acted keenly to make up for the problems as it found them in the course of implementation of the fiducie.