고령화 시대 재산관리수단으로서의 신탁 - 개정신탁법을 중심으로 -

Recently Korea has become an aging society and at the same time has undergone radical changes in the form of and the culture surrounding families. Under such circumstances, it becomes an urgent agenda for elderly generations to prepare asset management plans for their declining years and, after their death, for the people that they has cared for. In order to meet such need, in this article, the author examines the prospects of the trust scheme as an asset management vehicle for those generations. Flexibility, one of the merits inherent in the trust scheme, provides us with almost unlimited choices in designing a trust as an asset management vehicle. Also, the Trust Act of Korea provides for various means including independence of trust assets even in the context of the insolvency proceedings to protect the beneficiaries and other related parties and, as a result, we may anticipate stable legal relationships from the trust scheme. Given those features, the author believes that the trust scheme has sufficient potentials to qualify as an asset management vehicle for those generations. The author analyses the merits and demerits of alternative schemes(such as the asset management contracts and newly introduced regulatory guardian systems) in comparison with those of the trust scheme and concludes that, generally speaking, the trust scheme has advantages over other alternatives, both in terms of flexibility and stable legal relationship. The Trust Act of Korea that has been totally amended to become effective beginning July 2012, has introduced new types of trust and has successfully modernized Korean trust law system. Such changes in and improvements of Korean trust law will, in the author's view, enhance the prospects of the trust scheme as an asset management vehicle for those in need. The author highlights the point that a trust may be structured in an indefinite number of ways and the planner of a trust needs to take into account overall circumstances of each client in its designing process in order to present the trust structure that perfectly fits each client's needs. She examines the choices available at the stage of the formation of a trust, in terms of the timing and methods of the formation of a trust and the designation of the beneficiary(s) and the trustee(s). She also raises essential questions and issues that might be encountered in the course of the structuring of a trust and efforts to provide solutions therefor. Finally, the author suggests a few measures that might more enhance the prospect of the trust scheme as an asset management vehicle for those in need. Those measures include methods to mitigate possible psychological resistances or fears against transfer of the title under the trust scheme, introduction of a kind of protective trusts and an employment of alternative schemes together with the trust scheme to make up for the weak points in the trust scheme. She also emphasizes the needs of legislative supplementation in the tax law system, clarification of the applicability of inheritance laws and the changes in the regulatory environments for trustee businesses, in connection with the trust scheme under consideration in this article.