신탁수탁자의 선관주의의무

Abstract

In recent days, trust is being magnified as a property transfer method replacing inheritance and as a property management system of the intellectually handicapped supplementing adult guardianship. But trust legal principles of Anglo-American law are very foreign to continental law. Therefore, it is necessary to thoroughly analyze the trust legal principles of Anglo-American law and establish the legal principles accorded with our law system. This study has analyzed fiduciary duties of trust law, the most fundamental duty of the trustee. A trustee must deal with trust affairs with fiduciary duties. Korean theory and precedent have understood trustee's fiduciary duties as the same meaning as delegated person's duties. However, the trust legal principles, which makes the ownership get transferred, are different from the entrust of civil law. Considering these facts, trustee's fiduciary duties should not be vaguely defined as same as the entrust of civil law; it should be established based on the intent of trust law. Because a trustee has a wider discretion than a delegated person, he/she has the duty to prudently manage the property. This study has explained that a trustee's fiduciary duties are more serious than a delegated person's duties, on the authority of our civil law's legislative intent and the trust of U.S. Moreover, as the content about trustee's fiduciary duties, this study has proved ① the duty of trust affairs on the purpose of trust, ② the duty of maintaining his/her qualification, ③ the duty of preserving the trust properties, and ④ the duty of care on investment. The most controversial duty is the duty of care on investment, and this study has referred to America's prudent investor theory and developed a theory of analysis in accord to our law system.