국제신탁법: 해석론과 입법론

In private international law, a trust refers, at least principally, to a voluntarily created trust. There is no need to distinguish a trust inter vivos and a trust on death. There is no reason to differentiate a trust created by a contract. Whether a trust may only be created by a unilateral act or may also be created by a contract is a question to be left to the law applicable to trusts. Determining the law applicable to a trust is focused on clarifying its legal nature. Where a trust has a substance equivalent to a foundation, it will be good to characterize the trust as a foundation without legal personality, so as to apply Article 16/30 of the Private International Law Act. Its proviso on the change of seat needs to be bilateralized. Meanwhile, a trust without such a substance should be characterized as a sui generis legal relationship belonging to the law of obligations, so that conflict-of-laws rules applying to contracts should apply mutatis mutandis. As the objective criteria, a special weight could be laid on the principal place of the administration of a trust. It would be even better if the courts could develop a rule presuming this place to present the closest connection. As a legislative solution, the most desirable way appears to be to accede to the Hague Trusts Convention, and expand its applicability to cover trusts which is not reduced to writing and some other trust to which this Convention does not apply, as did the Swiss Act on Private International Law (IPRG) in 2006. Article 6, para. 2 of the Convention should also be narrowly interpreted. In determining the objectively applicable law, the law of the principal place of administration of a trust could often be regarded as the most closely connected law. In this way, Korea can actively participate in the internationally concerted efforts for a unified interpretation of private international law. The remaining issues can be dealt with by setting down the interpretive solution suggested above as part of the Korean Private International Law Act. If the Korean government should decide to spend more time before acceding to the Hague Trust Convention, it is recommended to create explicit provisions modeled on the Swiss IPRG, Arts. 149a, 149c and 149d. A rule presumption for the law of the principal place of administration of a trust could also be added. A second best legislative solution would be to distinguish between a trust with a substance equivalent to a foundation and one without. A new provision could provide for the application of Art. 16/30 on foundation for the former, while providing for the mutatis mutandis application of the provisions applicable to contracts, while presuming the law of the principal place of administration of a trust as the law of the closest connection. A provision on publicity could also be added.