예금채권에 대한 신탁법의 적용과 문제점 - 민사신탁의 기반확대를 위한 관점에서 -

Abstract

Before the Trust Act is revised, an examination of the ramifications of applying Trust Law to deposit bonds, which is one of the most commonly used means,should be taken place in order to prepare for the increased demand of the use of the trust system and implied trust, in light of its flexibility, independence of trust property and insolvency protection that enacts when the trustee is bankrupt. In this effect, not only will we be able to prepare for the task of revising the Trust Act, but we will also be ready, before civil trust is fully utilized, for the task of addressing the problems that may occur when the legal theories of trust law are applied to the area of civil trust. Taking this point in account, this paper will examine the trust law principles concerning deposit bonds, regarding mainly civil trust. First, relevant examples where deposit bonds may become problematic in relation to trusts were sorted and presented according to its type. In this process the relevant issues were also pointed out. Second, regarding the establishment of implied trust, a settlor’s intent to create an implied trust is required. However if such intention may be inferred from the settlor’s determination for the independence of the trust property and the separation of the trust property from the trustee’s property, that is sufficient also. Third, it was pointed out that when a trustee of an express trust or implied trust manages trust property by opening a bank account in a deposit bond form,and does not state it as being trust property, in account of the real name financial trust system, trust law principles should be applied over the principle of attribution to the depositor. Fourth, concerning the issue of the public notice of deposit bonds, there was little change in the amendment. However, concerning the issue of offset, it could be understood that the offset expectations of financial institutions, that is in judging whether they are in good faith or without fault, should be assessed differently in contrast to a laymen’s offset expectation, as the former are financial experts. Therefore, it can be concluded that when a trustee opens a bank account in his/her own name to manage trust property, in order for financial institutions to assert and prove that they are in good faith and without fault on the matter that this account is not a trust account, the standard of care should be raised so that financial institutions are obliged to inquire the depositor whether the contents are of trust property. Fifth, according to the current and the revised draft of the Trust Act, when it is notified to the financial institution that the account is indeed a trust account,the matter of whether it can be acknowledged as a savings account trust is negative, unlike the United States. However, under the revised draft of the Trust Act, it can be said that this serves as a similar function as a Will substitutes trust.