법정후견제도에서 후견인의 재산부정사용 문제와 후견제도지원신탁

In the modern society, the importance of trust is increasing continuously, and the possibility of utilizing trust in the legal guardianship system is being explored across the overall guardianship system for minors and adults. A representative case is the guardianship system support trust that is executed by the Family Court in Japan since February, 2012. Especially, the guardianship system support trust is being operated as one of preliminary measure for solving the problem of illegal use of property by the relative guardian. This is also the problem of the guardianship system in Korea. Regarding the property management of the guardianship system, the focus is made on the utilization of the trust, and in the aspect of preliminary preventive system and not post-check system on the property management, the guardianship system support trust executed in Japan since 2012 will be reviewed systematically and its advantages and weaknesses will be identified to provide the method for introduction in the Korean legal system. Especially, in the use of terms, ‘Guardianship support trust’ will be more appropriate than the guardianship system support trust. For the method of introduction, the method of execution based on Article 38-2 in the Rule for Family Lawsuit in Japan has the advantage that separate legislative procedure is not required. However, according to the personal opinion on the problems that occur on executing the guardianship support trust, it is considered that separate legislative supplementation, and legal basis are required. Also, the expansion on the scope of users that can use the guardianship support trust is required. In the case of appointing professional guardian or utilizing the trust is appropriate, a guideline is required, and this system must be permitted also to the person of small property, the ward. Moreover, it must be applied widely in the guardianship system for minors, and the scope of subjected property must be expanded. There is a restriction that an order must be received from the Family Court, but there are problems that the relative guardian can receive and use expenditure that exceeds the limit, and in some cases, the trust agreement can even be cancelled. To limit the rights of the relative guardians on the involvement of the guardianship support trust, strict evaluation must be performed on issuing the order, and measures must be taken to minimize the involvement of relative guardians on the guardianship support trust. On the execution of the guardianship support trust, legislative supplementation is required. In the guardianship support trust, preserving the original of the trust property is important, but the current trust products according to the “Capital Markets and Financial Investment Services Act” are products that enable dividends by results (Article 103, Section 3 in the Act, Article 104, Section 1 in the Enforcement Ordinance of the same Act), so it cannot be a product that preserves the original by principle. So the guardianship support trust must be designed to enable preservation of original. Also, since the financial institution is not a person, it is not subjected to the Depositor Protection Act, so in the case of the money trust, it is not applied with the Depositor Protection Act as it is being managed by the trust company. This must be revised to enable the application.