寄附金法과 信託法理

Donation Law and Trusts

Recently, Korea changed its Donation Law, which regulates collection of public donation. The gist of the change was the deregulation of the collection process. That is, any person or organization can now collect donations from public after registration, vis-a-vis government authorization before the revision. According to the new Donation Law, a collector should not compel the donation, keep the record of collection process and make it available on the Internet. If the collector violates any of these duties, the registration shall be canceled and collected money returned to donors. However, even the revised Donation Law does not say anything about the legal relationship between the donor, donee, and the person who benefits from the donation. According to many scholars, public donation should be analyzed as “trust-like transfer theory which has its origin in German trust law. They argue (1) donors have right to ask the donee to use the donated money for the purpose of the donation; (2) the interest of the person who benefits from the donation is protected by the theory of the contract for the third parties; (3) provisions regarding gifts in the civil code should be applied to public donation. I have a different opinion. Contrary to Germany s situation, we have a codified trust law, which adopts Anglo-American trusts. Therefore, if anyone donates money with the intent to create a trust, we have a trust, not just a “trust-like transfer. Although not every donation involves that intent, I argue at least in some transactions we can find the donors intents to create a trust. If we analyze these transactions from this point of view, we have a classic example of a trust: donor is settlor, donee is trustee, and the person who benefits from the donation is beneficiary. Donee(trustee) now owes many duties specified in the Trust Code; duty to carry out the terms of trust(Article 28), duty to be prudent(Article 28), duty to be loyal to the beneficiary(Article 29, 31), duty to segregate the donated money(Artielc 30), duty to account to the beneficiary(Article 63). If donee transfers the donated money to third parties, donor and beneficiary can follow or trace it(Article 19, 52). Applying the Trust Code to the public donation also protects the donated money(trust property). Donee s personal creditors cannot reach the donated money(Article 21). If donee goes bankrupt, the donated money does not constitute the bankruptcy estate(Article 22). On top of that, anyone who belongs to the category of beneficiary can demand the donee to exercise the discretion prudently when deciding the distribution of the donated money. Although many scholars are reluctant to accept this notion of trust, I maintain we could get a much improved legal scheme for the realization of the donor s intent and the protection of the donated money if we apply the Trust Code more positively.