개정신탁법상의 유언대용신탁에 관한 소고 (A study of Testamentary substitutes in The amended Trust Act)

서지정보

· 발행기관 : 한국민사법학회
· 수록지 정보 : 민사법학 / 64권 / 3 ~ 49페이지
· 저자명 : 김병두

초록

The amended Trust Act introduced a testament substituted trust thatthe consignor is allowed for managing the property for a lifetime while thesuccession of his estate in the family is made for management afterhis/her death (Article 59). Design and management of the propertysuccession can be done using diverse and flexible ways and reflecting theintention of the consignor more actively. The signs of change in thejudicial agenda reconcile caused by such design may be underestimated inthe testament substituted trust.
First, the amended Trust Act also accepts the complete transfer of theproperty and management and disposal according the purpose of the trustas the conceptual sign. The above provisions of positive law also belong tothat category. Nevertheless, the essence of trust was considered as‘transfer of property' restricted by the purpose of trust, and 'managementof trust property' has become more important function nowadays. Thisadd-on feature of the testament substituted trust, which is the distributionof income trusts, will focus on the asset management and trust about thedistribution function in the combined terms of property transfer andmanagement. Parties of the trust are to plan the contents of trustcarefully in advance due to the supplemented arbitral definition ofregulations regarding fiduciary duties to ensure the flexibility of trust. Amodel for the trust agreement should be written, and consequent empiricalcase studies on the practical demand are huge. However, previous studiesseem to stay in introducing the purpose of the system so that further studies are urgently needed to support them.
Second, the amended Trust Act newly defines the consecutive trust ofbeneficiaries and the consecution of beneficiary designee so thatconsecutive trust may be established for multiple beneficiaries. In this case,the flexibility of trust is maintained considering unpredictable futureconditions, and the trustee will retain the right to specify the beneficiaryor the trust property. However, in such cases, the legal relationship amongconsignor, trustee, and beneficiary over time is questionable foreffectiveness. Above all, in case that the trustee has discretionary right fortrust profit sharing, the beneficiaries becomes very sensitive for protectingrights of the beneficiary and the trustee for the supervision events afterthe death of the consignorThird, benefit of the beneficiary in the future as indeterminate result isnot different from the general property. It includes not only comprehensiveinformation implicating the status of beneficiary but also the trust propertyfor the benefit claim, which means revenue bonds, realized as concreteright incrementally after establishment of trust. If the trustee hasdiscretionary right, transfer or enforcement of revenue bond may becomethe center of conflict. In reality, if the beneficiary's creditors intervene,conflict arising from exercise of the rights issue will be amplified.
Forth, in the testament substituted trust, the attribution can bedetermined on an inheritance as after the death by the consignor of hisintention during his lifetime. Moreover, the trust property to someone iscertainly transferred without consulting of the division of property.
Therefore, previous studies of conventional conflict with the inheritancelaws were concerned about this matter. Despite of that the clear provisionsare omitted, a legal portion of an heir is recognized in the application oftrust law relationship. Even though a reserve is recognized in therelationship with the primary beneficiaries after death of consignor, consecutive recognition of the legal portion of other heirs have not beenclearly determined. The further discussion of theory is expected in thismatter.

영어초록

The amended Trust Act introduced a testament substituted trust thatthe consignor is allowed for managing the property for a lifetime while thesuccession of his estate in the family is made for management afterhis/her death (Article 59). Design and management of the propertysuccession can be done using diverse and flexible ways and reflecting theintention of the consignor more actively. The signs of change in thejudicial agenda reconcile caused by such design may be underestimated inthe testament substituted trust.
First, the amended Trust Act also accepts the complete transfer of theproperty and management and disposal according the purpose of the trustas the conceptual sign. The above provisions of positive law also belong tothat category. Nevertheless, the essence of trust was considered as‘transfer of property' restricted by the purpose of trust, and 'managementof trust property' has become more important function nowadays. Thisadd-on feature of the testament substituted trust, which is the distributionof income trusts, will focus on the asset management and trust about thedistribution function in the combined terms of property transfer andmanagement. Parties of the trust are to plan the contents of trustcarefully in advance due to the supplemented arbitral definition ofregulations regarding fiduciary duties to ensure the flexibility of trust. Amodel for the trust agreement should be written, and consequent empiricalcase studies on the practical demand are huge. However, previous studiesseem to stay in introducing the purpose of the system so that further studies are urgently needed to support them.
Second, the amended Trust Act newly defines the consecutive trust ofbeneficiaries and the consecution of beneficiary designee so thatconsecutive trust may be established for multiple beneficiaries. In this case,the flexibility of trust is maintained considering unpredictable futureconditions, and the trustee will retain the right to specify the beneficiaryor the trust property. However, in such cases, the legal relationship amongconsignor, trustee, and beneficiary over time is questionable foreffectiveness. Above all, in case that the trustee has discretionary right fortrust profit sharing, the beneficiaries becomes very sensitive for protectingrights of the beneficiary and the trustee for the supervision events afterthe death of the consignorThird, benefit of the beneficiary in the future as indeterminate result isnot different from the general property. It includes not only comprehensiveinformation implicating the status of beneficiary but also the trust propertyfor the benefit claim, which means revenue bonds, realized as concreteright incrementally after establishment of trust. If the trustee hasdiscretionary right, transfer or enforcement of revenue bond may becomethe center of conflict. In reality, if the beneficiary's creditors intervene,conflict arising from exercise of the rights issue will be amplified.
Forth, in the testament substituted trust, the attribution can bedetermined on an inheritance as after the death by the consignor of hisintention during his lifetime. Moreover, the trust property to someone iscertainly transferred without consulting of the division of property.
Therefore, previous studies of conventional conflict with the inheritancelaws were concerned about this matter. Despite of that the clear provisionsare omitted, a legal portion of an heir is recognized in the application oftrust law relationship. Even though a reserve is recognized in therelationship with the primary beneficiaries after death of consignor, consecutive recognition of the legal portion of other heirs have not beenclearly determined. The further discussion of theory is expected in thismatter.

참고자료

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