개정신탁법상의 유언대용신탁에 관한 소고

A study of Testamentary substitutes in The amended Trust Act

The amended Trust Act introduced a testament substituted trust that the consignor is allowed for managing the property for a lifetime while the succession of his estate in the family is made for management after his/her death (Article 59). Design and management of the property succession can be done using diverse and flexible ways and reflecting the intention of the consignor more actively. The signs of change in the judicial agenda reconcile caused by such design may be underestimated in the testament substituted trust. First, the amended Trust Act also accepts the complete transfer of the property and management and disposal according the purpose of the trust as the conceptual sign. The above provisions of positive law also belong to that category. Nevertheless, the essence of trust was considered as ‘transfer of property restricted by the purpose of trust, and management of trust property has become more important function nowadays. This add-on feature of the testament substituted trust, which is the distribution of income trusts, will focus on the asset management and trust about the distribution function in the combined terms of property transfer and management. Parties of the trust are to plan the contents of trust carefully in advance due to the supplemented arbitral definition of regulations regarding fiduciary duties to ensure the flexibility of trust. A model for the trust agreement should be written, and consequent empirical case studies on the practical demand are huge. However, previous studies seem to stay in introducing the purpose of the system so that further studies are urgently needed to support them. Second, the amended Trust Act newly defines the consecutive trust of beneficiaries and the consecution of beneficiary designee so that consecutive trust may be established for multiple beneficiaries. In this case, the flexibility of trust is maintained considering unpredictable future conditions, and the trustee will retain the right to specify the beneficiary or the trust property. However, in such cases, the legal relationship among consignor, trustee, and beneficiary over time is questionable for effectiveness. Above all, in case that the trustee has discretionary right for trust profit sharing, the beneficiaries becomes very sensitive for protecting rights of the beneficiary and the trustee for the supervision events after the death of the consignor Third, benefit of the beneficiary in the future as indeterminate result is not different from the general property. It includes not only comprehensive information implicating the status of beneficiary but also the trust property for the benefit claim, which means revenue bonds, realized as concrete right incrementally after establishment of trust. If the trustee has discretionary right, transfer or enforcement of revenue bond may become the center of conflict. In reality, if the beneficiary s creditors intervene, conflict arising from exercise of the rights issue will be amplified. Forth, in the testament substituted trust, the attribution can be determined on an inheritance as after the death by the consignor of his intention during his lifetime. Moreover, the trust property to someone is certainly transferred without consulting of the division of property. Therefore, previous studies of conventional conflict with the inheritance laws were concerned about this matter. Despite of that the clear provisions are omitted, a legal portion of an heir is recognized in the application of trust law relationship. Even though a reserve is recognized in the relationship with the primary beneficiaries after death of consignor, consecutive recognition of the legal portion of other heirs have not been clearly determined. The further discussion of theory is expected in this matt