미국과 싱가포르의 사업신탁법제에 대한 개관 및 우리나라에의 시사점

Abstract

Traditionally in Korea, trusts are simply regarded as financial vehicles and only utilized in very limited areas. On the other hand, in the birthplace of trust system, the Anglo-American legal world, due to the flexibility in design, trusts, especially business trusts, have been recognized as alternative business organizational forms to the traditional ones, like corporations and partnerships, and used in various areas for over a hundred years. Furthermore, Singapore, which is currently ranked as one of the world’s top leading financial centers, now not only permits business trust as a business form in the legal context, but also actively promotes and opens its stock exchanges up for business trust listings. Specifically reviewing on the business trust systems of the two countries, first of all, in the United States, business trusts were historically governed under traditional common law principles in spite of their originality and long existence. But this legislative policy had induced lots of uncertainty over the legal status of the business trusts and brought about their declination as a mode of business organization over the course of the twentieth century. To address this legal issue and remove disadvantages associated with it, the National Conference of Commissioners on Uniform State Laws approved the Uniform Statutory Trust Entity Act(“USTEA”) in 2009. Under USTEA, a business trust is called as a “statutory trust” because it is formed by the filing of a certificate of trust. A statutory trust is a juridical entity, separate from its trustees and beneficial owners, which has capacity to sue and be sued, own property, and transact in its own name. Second, as for another advanced legislation of business trusts, Singapore was the first Asian country to introduce the concept of business trusts with the passage of the Business Trusts Act(“BTA”) in 2004. The motivation to enact the BTA was to provide numerous ways to start new businesses in the country. Although the definition of business trusts in BTA is similar to that of common-law trusts in the U. S. legal context, the most distinctive advantage of business trusts in Singapore is that unitholders are protected while enjoying limited liability and the BTA clearly prohibits creditors of unitholders of the registered business trusts in question from seizing the business trusts’ property. Besides, distributions can be made out of any operating cash-flows, which provides more flexibility than corporations. To reflect the result of the review, in order to boost the newly introduced business trust system in Korea, the independent act need to be made and, most importantly, the act itself should include the clauses of either the juridical entity or the limited liability of unitholders, which are the key elements of business organization.