유한책임신탁에 대한 검토와 신탁법 개정을 위한 시사점

Abstract

Reform of the Korean Trust Act is currently a topic of debate. To provide context and comparison for effective reform, Anglo-American and Japanese legal frameworks are reviewed and compared with current Korean Trust law in this paper. In the Anglo-American tradition of trust laws, common law does not recognize a trustee as having assumed an additional or qualified legal personality. As a result, the trustee is personally liable to trading creditors regarding debts incurred in the course of carrying on a trust business. If a debt is not paid or tort liability is not satisfied, the creditor or tort victim has a remedy by action against the trustee personally under Anglo-American laws, rather than by personal action against the trust asset itself. However, in many other jurisdictions including Korea and Japan, trustee legislation includes provisions where the trustee's personal liability may be limited or excluded. Anglo-American laws permit a trustee to contract with third parties on the understanding that his or her personal liability is limited or excluded, indicating his or her fiduciary capacity using clear words, so long as such an arrangement is not contrary to the public interest. In the most recent amendment as of 2006, the Japanese Trust Act introduced a limited-liability trust system very similar to corporations with limited-liability. These changes were made in order to modernize its Trust Act, and to reflect international trust practices. This paper reviews current law regarding such arrangements for limitation or exclusion of a trustee's personal liability under Anglo-American laws and the limited-liability trust system under the Japanese Trust Act. Through this comparison, recommendations to changes in Korean trust law are presented.