환경보호를 위한 국민신탁법과 자연환경국민신탁의 특징과 문제점에 관한 소고

Review on the character and problems of National Trust Act and National Nature Trust to protect environment

National Trust Act that includes the aspects of cultural heritages was enacted and announced in March 24, 2006 in line with the needs of legislation to support a series of national trust movements that have been waged spontaneously and intensive efforts of Ministry of Environment and environmental organizations. This conveys a problem that the national trust movements in Korea have been dualized to the movement by 2 National Trust Corporations which are the special corporations in accordance with National Trust Act and the one by pure private movements. Accordingly, the opinions insisting revision have raised. This paper focuses on reviewing the character and problems of National Trust Act and National Nature Trust to protect environment and suggesting a revision as a preliminary discussion to amend the act. Especially, this paper suggested the amendment of National Trust Act, Article 2, Paragraph 2 to “National Trust is defined as a legal relation that does preserving or managing activities in private sector to improve life quality of future generation in addition to current generation by acquiring cultural heritages and national environmental heritages that are valuable to preserve from the people, company and group in a form of donation, giving and trust to preserve/manage, or buying them with donated/given/trusted/consigned property and contributions to preserve/ manage or by preserving/managing them in a form that is not acquisition. The Trust Act defines the trust as fiduciary relationship. Likewise, National Trust specifies “…… preserving and managing activities” but it will be desirable to define it as “National Trust Activity” and National Trust as “legal relation that conducts …… preserving/managing activities”. Also, it is suggested to amend “donated/given/consigned” to “donated/given/trusted/consigned property” to include trust. In light of legal nature of National Trust Corporation, there are theories like Anstaltsperson and public corporation which is the special corporation. However, given that National Nature Trust considers autonomous character as an association, it will be hard to see it as Anstaltsperson which does not hold a general assembly but does have users. National Trust Corporation is a special corporation that a special act assigns corporate entity as a public corporation, not a Anstaltsperson. In addition, with the aspects of having a strong character of autonomous association, it should be a special corporation in accordance with National Trust Act. In regards to Preservation Agreements, there is a theory that it is unofficial administrative action or public law contract but all theories are based on the fact that the legal nature of National Trust Corporation is Anstaltsperson. Preservation Agreements specifies its definition as “Contract on preservation and management signed by National Nature Trust, land owner, occupant and its agent for the natural environmental heritage that needs preservation and preservation” (Preservation Agreement Regulation, Article 2): it clarifies that Preservation Agreement is a “Contract”. And, as existing theory insists, National Trust Corporation signs this preservation agreement at an equal position with the land owner. Considering this, Preservation Agreement should be interpreted as judicial contract. Of course, there is a supporting regulation (Ref. Article 16) that could partially fund the cost directly used for preserving/managing the property of the preservation agreement within the budgetary scope of the nation and local government for the corporation and group which signed the preservation agreement with National Trust Corporation but it could not be the cause of regarding preservation agreements as unofficial administrative actions. Rather, it is just to stipulate political support by the government for pro bono activities.