수익권에 관한 「신탁법」 개정시안

Beneficiary's interests constitute an essential part of a trust, but the Trust Act currently has only four articles in that regard and is far less sufficient for the vitalization and modernization of the trust system. The draft bill recently proposed by the Special Committee of the Ministry of Justice for the Amendments to the Trust Act(the "Draft") suggests a number of important amendments including the following: First, it introduces new types of trusts such as (i) a trust that empowers a person to appoint or replace a beneficiary after the constitution of the trust, (ii) a trust with beneficial interests that would be activated at the time of the death of the settlor and (iii) a trust having beneficiary(s) successive upon death of the former beneficiary(s). Secondly, the Draft establishes a general rule to deal with a trust having a plural beneficiaries regarding matters that are subject to beneficiaries' consents or determination. Unanimous consents of beneficiaries are required for those matters(except for certain essential rights of beneficiaries) unless the settlor(by means of a will or a declaration of trust, but in case of a trust constituted by a trust contract between a settlor and a trustee, by means of the trust contract, hereinafter when referring to the settlor, the same will apply) provides for otherwise. If the settlor provides for the adoption of the beneficiaries' meeting system but does not sets forth enough details to operate such meeting, default rules of the Draft will kick in to make up the insufficiencies. Thirdly, the Draft provides for securitization of beneficiaries' interests of a trust that the settlor indicates such securitization upon formation of the trust. It establishes provisions for the transfer and pledge of, and the exercise of rights on, beneficial certificates and also introduces systems for beneficiaries' book, record date, non-certification, bona fide purchase, etc. Forth, the Draft refines provisions for the acquisition and waiver of beneficiary's interests, introduces provisions for transfer and pledge of beneficiary's interests, and specifies certain rights of a beneficiary granted by the Trust Act that may not be restricted by the settlor. It also clarifies the priority of, and the statute of limitation on, the beneficiary's claim against a trustee to demand a payment or a delivery on the trust assets. For the implementation of the ultimate purpose of the amendments to the Trust Act, it would be necessary to examine closely related laws(such as tax codes, capital market laws, inheritance laws and bankruptcy laws) as well as the Trust Act at the same time.