상사신탁의 개념과 유형에 관한 연구

In South Korea, commercial trusts make up the greatest portion in practice. Regulatory approach has been made to commercial trusts in order to regulate the trust business companies. There has not been much study on commercial trusts from the perspective of private law thus far. The Trust Law was made based on donative trust. It is necessary to consider the problems when the Trust Law applies to commercial trusts. This article aims to consider such problems. In order to do that, it defines the commercial trusts first. While many scholars regard the commercial trusts as trust taken by a trust business company for its business, it argues that the commercial trust should be defined as a trust of which purpose is commercial. Next, it describes the examples of commercial trusts used in South Korea. Based on such review, it tries to categorize the commercial trusts into three types. First, the vehicle-type trust is a trust where the parties use a trust for bankruptcy remoteness function or tax avoidance, etc. and the trustee maintains the trust assets following the entrustor’s instruction. The asset securitization trust falls under this type. In this type, as the trustee does not perform actively and rather follows the instructions of the entrustor passively, the issue relating to passive trust could arise in some circumstances. Second, the asset-management-type trust is a trust where the entrustor uses the trust to make profits relying on trustee’s ability to manage the trust assets. The specified money trust and collective investment fund fall under this type. In this type, the trustee’s major work is to manage the trust assets and make investment with them. Accordingly, the duties of trustee relating to its investment activities become important. Third, the business-type trust is a trust where the entrustor transfers major assets for business or business itself, and the trustee manage the business and distribute the profits to the beneficiaries. In this type, the trustee is similar to a director of a company and it needs to reconsider the duties and obligations of the trustee from such perspective. In addition, the limited liabilities trust is expected to be used to limit the liabilities of the business-type trust’s trustee to the trust assets. This article reminds the importance of the commercial trusts and some legal issues relating to them. Considering the significance of commercial trusts in South Korea, further study and discussion should be made on the commercial trusts from now on.