黙示信託과 擬制信託의 硏究 (평석대상 판결 대법원 2002. 7. 26. 선고 2000다17070 판결)

This essay is a annotation on Supreme Court Decision 2000Da17070 delivered on July 26, 2002[Principal of Company Bond]. The decision recognized a trust when the parties had not made it clear to create a trust. Six years have passed since the delivery. But the legal issues on trust of it have not been focused. The core issue of this essay is whether a trust may be recognized or not when the parties did not make it clear to create a trust. This essay touches some issues on trust like hereunder. First, I check Anglo-American and Japanese laws. I introduce several concepts on trust from the former and some court's decisions from the latter. Some decisions of Japanese courts are similar to Decision 2000Da17070. Second, I analyze the trust by the contract and one by the statute. I study whether the parties' intention is necessary or not to create a trust by the contract. Some Japanese scholars imply the intention is not necessary, but I strongly insist that the intention be needed. Third, from the analysis do I come to the conclusion that the theoretical structure and rulings of the Decision 2000Da17070 are not right. Fourth, I point out that the Decision 2000Da17070 looks like it recognizes the implied trust, but it almost recognizes the constructive trust. Fifth and finally, I touch the issues on trust of a trust adminstrator and the Korean Trust Business Act. From it, I suggest that we have to recognize an implied trust very prudently.