미국의 신탁법리 —우리나라의 신탁법과의 차이를 중심으로—

This study is to introduce Legal principles of Trust in America to Korea. Trust was born in England and grown up in America. England has developed peculiar two concurrent legal regimes which are common law and equity law. Trust is said to be the best creature English equity law has made. The reason of why trust structure is so useful to meet various needs of human society is explained as follows; insolvency protection, conduit taxation, fiduciary regime and flexibility in design. Continental countries that have developed civil law system have tried to introduce trust to their legal system, acknowledging the availability of trust. However, it is not easy to explain trust principles harmoniously in the civil law system. Korea enacted the Trust Act in 1961 which copied the Trust Act of Japan of 1922 which also copied the California Civil Code of 1872 and the India Trust Act of 1882. Introducing trust principles, Japan modified some basic rules of English-American trust which should be appreciated as endeavor to absorb trust principles into Japan legal system. However, such endeavor, I think, made trust in Korea less available than that of common law countries. To maximize the availability of trust, it is necessary to correctly understand the legal principles of trust in America and to introduce them without modification. This paper is composed of following chapters; 1. introduction, 2. the concept of trust, 3. creation of trust, 4. fiduciary regime of trust, 5. transferability of beneficiary’s right, and 6. termination of trust. At the second chapter, I described the concept of trust as “A transfer property to B for the benefit of C,”where B has legal title of the property and C has equitable ownership of the property. Then, I introduced some basic trust rules; 1. A same person can possess three positions (settlor, trustee, beneficiary) at the same time as long as there is another trustee or another beneficiary, 2. A trust is not created until it is funded, 3. A trust will not fail for want of a trustee, and 4. Cotrustees must agree on action. At the third chapter, the four requirements to create a valid trust is explained as follows; 1. The settlor must have the intent to create a trust, 2. There must be funding (property transferred to the trustee), 3. The beneficiaries must be ascertainable, and 4. The deed of trust must be writing if trust property includes real property. Also precatory trust, honorary trust is distinguished from trust, and resulting trust and constructive trust is explained as well. At the fourth chapter, I said the fiduciary duty is composed of duty of loyalty (duty to avoid conflict of interest, self-dealing), duty to care, duty not to delegate and duty to be impartial. As for duty to care, the historical evolutionary process is also introduced. The theory of duty to care has evolved from Court List Rule, through Prudent Man Rule, to Prudent Investor Rule. At the fifth chapter, I explained the spendthrift trust. A settlor can restrict a beneficiary’s ability to transfer his or her interest by including what is known a spendthrift clause in the trust. The clause will bar a beneficiary’s ability to transfer his or her interest voluntarily (by sale or gift) or involuntarily (by foreclosure). In New York, a beneficiary’s interest is presumed nontransferable unless the trust expressly provides otherwise. However, this clause is invalid in settlor-beneficiary trust and there are many legislative or judicial exceptions to this rule. These are to protect creditors from settlor who fraudulently transfer his or her property to avoid repaying debt. At the sixth chapter, I explained the cause of termination of trust. Trust can be terminated not only by natural causes such as the fulfillment of trust purpose, or exhaustion of trust property, but also by agreement of parties. Two parties’(settlor and beneficiary) agreement is enough to terminate trust because trustee has no interest in trust. When beneficiary want to end trust, trustee disagree and settlor dies, the court will decide whether to terminate trust considering the remaining purpose of the trust according to the Claflin doctrine. At the end of each chapter, I compared the Korean Trust Act with American rules. First, there is no mention about the spendthrift trust in Korean Act, thus, under the general rule, the transferability of beneficiary’s interest is not barred. I indicated this is the main reason of why the trust for minors or handicapped persons is not activated in Korea. Second, the settlor-trustee trust is not permitted in Korea. It is due to that the Korean Act provides that trust can be created only by contract or will. This made inter-vivos unilateral creation of trust impossible in Korea. Third, Korea’s scope of protection for third party who acquired the trust property from ultra-vires trustee is wider than that of America. American Act protect only bona fide purchaser who paid value for the trust property, but the Korean Act does not inquire whether the third party paid value or not. Lastly, as Korean Act provides that trust can be created by contract, under the general contract rule, trust can be terminated by unilateral act of trustee if settlor and trustee agree on doing so. However, this is not proper for the method of trust termination because trust is designed to serve beneficiary’s interest, not to serve trustee’s interest.