상속수단으로서의 신탁

Trust as a Device for Succession

A trust cannot exist without a fund owned by a trustee obliged to deal with it as a segregated fund according to the terms of the trust prescribed by the settlor at the time he creates the trust. The settlor must therefore ensure that ownership of the intended trust assets is transferred to the trustee, whether by will or in his lifetime pursuant to a contract. And no trust can exist unless the trustee is, or will be, under an obligation to another in respect of the trust fund. Thus there must be a beneficiary with a right to enforce the terms of the trust against the trustee. This mechanism of the trust plays important role in the context of succession. That is, the trust is a very flexible device for structuring the benefits which property can provide, in particular in ways which are impossible or inconvenient to do simply by making an outright gift. Because this kind of trusts can be qualified as a testamentary gift, they have to comply with the law of succession : they have to meet the requirements of the succession law as well as the trust law. This article thus examines the formalities, conditions and effects of the trust created inter vivos or by will from a succession point of view in depth. Not only the trust principles and codes of England and US but also the Japanese Trust Act are considered comparatively. Moreover many issues arising from the relations between Korean Trust Act and Civil Code are carefully looked at, and some constructions corresponding both regulations are proposed.