사해적 사업신탁의 규율에 관한 단상

The Trust Act, comprehensively revised in 2011, established the institutional framework for business trusts by allowing trusts of negative assets and introducing beneficial certificate-issuing trusts and limited liability trust systems. When the limited liability trust system, which can function as a business trust under Korean law, is abused as a fraudulent trust, the need for trust creditor protection is greater than in cases of ordinary fraudulent trusts, as the trustee's liability to trust creditors is limited to trust property. However, Korean Trust Act does not provide separate provisions for the cancellation of limited liability trusts, leaving it to the general principles of fraudulent trust cancellation, and Article 8(4) of the Trust Act is insufficient for protecting trust creditors. Limited liability trusts can achieve effects similar to the limited liability structure of stock companies by restricting the trustee's liability to trust property. Thus, business trusts resemble corporate systems in terms of core organizational law functions such as asset partitioning and limited liability structure. Examining Korean corporate law, when a personal company is established with the intent to defraud creditors, cancellation is permitted, but the effect of the cancellation judgment applies only prospectively, and the company must undergo mandatory liquidation procedures similar to dissolution cases. This consideration reflects the complex interests arising after company establishment, allowing creditors to exercise their rights through distribution of residual assets after liquidation. This paper analyzes the legislation of the United States, Singapore, and Japan regarding the cancellation of business trusts to derive implications. First, the US Uniform Statutory Trust Entity Act regulates business trusts as organizations with separate legal personality, generally prohibiting cancellation of business trusts unless provided in the trust instrument, and stipulates mandatory liquidation procedures upon dissolution. Second, Singapore's Business Trusts Act establishes strong trust creditor protection mechanisms by imposing unlimited liability not only on trustees but also on all related parties when business is conducted with fraudulent intent. Japan, similar to Korean law, does not separately regulate business trusts but provides for limited liability trusts in its Trust Act; however, the limitations in protecting trust creditors upon cancellation of fraudulent trusts are identical to those in Korean law. Through this comparative legal analysis, this paper concludes that special regulations different from ordinary trusts are necessary when limited liability trusts that can be utilized as business trusts are cancelled as fraudulent trusts. Specifically, it proposes that while recognizing the cancellation of limited liability trusts, mandatory liquidation procedures should be required, similar to cases where limited liability trusts terminate.