신탁법상 수탁자의 자율성 강화와 책임제한의 한계- 유한책임신탁의 논의를 중심으로 -

Abstract

One thing determining relationship of trust is that some liability is given to trustee for securement of a beneficiary right by operating a trust asset. In respect of that trust is management of an asset for benefit of one or more others, trustee has liability to distinguish between trustee’s own asset and trust asset and to administer them separately. Subsequent question related to the liability is liability to a beneficiary and third party. Current Trust Act actualizes scope of trustee’s liability, escaping from the traditional view only emphasizing trustee’s duty in trust relationship. It is ‘Trustee’s Limited-Liability Special Agreement’ that would like to enlarge scope of individual trustee’s work as well as professional trustee company’s work. In this paper we shall see several issues related to trustee’s liability by introduction of Limited-Liability Trust. To deal with these issues, I first address purpose and introduction background of Limited-Liability Trust through concept of Limited-Liability Trust. In addition, I examine thoroughly negative opinions against the introduction of Limited-Liability Trust and sets out to investigate whether the Limited-Liability Trust system meets the enacted purpose or not. Second, I look closely at the at Limited-Liability Trust of other countries developed with active professional trustee companies, especially United States and Japan, through research of law, recent theories, and major cases. Finally, this article takes highly microscopic approach to the question of tort liability for damages under the Limited-Liability Trust. In relation to the question, ⅰ) I review interpretation and application of tort liability under special circumstances, ⅱ) I wish to address the scope of limited liability between trustee and legal parties of the trust after discharge of trustee’s tort liability, and ⅲ) I endeavor to infer and elucidate trustee’s liability limitation for damages through factor analysis such as whether trustee’s tort liability to a third party occurs in the course of transaction between both and whether it only stems from transaction of ordinal trust work.