「신탁법」상 수탁자의 의무와 권한

Recently, Korean Ministry of Justice has been working on a revision of the Trust Code. This Code has been in force for more than 4 decades in its original form(with minor revisions). Its model is the Japanese Trust Code, which was made in 1920s based on the Anglo-American trust law of the 19th centuries. Therefore, Korean Trust Code has been criticized as outdated and ineffective to deal with modern economic environment. In this article, which was prepared for the revision hearing in September 25, 2009, the author explains some issues regarding the duties and rights of the trustees. Some of the provisions of the Trust Code need to be revised. First, the duty of care, which is one of the basic duties of the trustee, should be a default rule. Second, we need to formulate a provision about the duty of loyalty. Third, the provisions on the "no conflict rule" need to be repaired. Forth, we could make the injunctions available for the beneficiaries to prevent any breach of trust occurring. Fifth, as a powerful remedy for the breach of trust, provisions regarding the disgorgement of secret profits need to be installed as well. Sixth, we need to make priority rules about the compensation and renumeration of expenses. Preparing for the 21th century in trust lawyer's perspective, we need to make the Trust Code not only more efficient, but also more coherent with principles of Korean law. However, some scholars and practitioners want the Trust Code to be more effective vehicle to financial needs. Although the author recognizes the necessity of adaptation to the changed economic reality, he points out that much work has to be done before jumping on the revision train.