공익신탁법에 관한 약간의 검토

The public trust(“charity trust” in Anglo-American trust law) has been regulated by the Trust Act 1960 in Korea. This has been changed by the new Public Trust Act 2013. This Act stipulates special rules for the public trust. Some of them are old but detailed than the former law, others are new to our charity law. In this article, the author studies the problems of the new law, and raise policy questions. First, some of the articles need to be revised. For example, Articles 4(9) conflicts with Article 24. In Article 4(9), the settlor has to make a provision in the instrument that the trustee shall give over the trust property to another charitable corporation, charitable trust or the state when the trust fails. However, the trust property “reverts” to the named parties in the instrument when the trust fails according to Article 24. This contradictory rules are in need of correction. The appointment of “trust administrator”, who has the power of enforcement in the public trust, needs to be compulsory. Second, the new Act imports the “official custodian” from the English Charities Act. Regardless of the necessity of the new rule, the Act does not provide the proper process by which the trust property is transferred. Third, the cy-près doctrine is virtually abolished in the new Act, and it is not a desirable legal policy. At the end of the trust, the trust property cannot revert to the settlor or the heirs thereof, or any non-charitable entities, and the trust cannot be continued by the cy-près rule. In this regime, the settlor’s freedom of alienation is severely curtailed, and this would result in decrease of incentive to make the charity trust.