신탁을 통한 재산승계의 이론과 실무

초록

This article analyzes specific features of the trusts established for inheritance and related legal issues. Korea is a civil law country and inheritance via trusts is not widely used yet. However, transferring assets to next generation via trusts is a very useful device to a person with special needs, such as parents with a disabled child or a family who has children or relatives living in North Korea. In this regard, this article examines legal issues relating to testamentary trusts and will-substitute trusts (the “Will-Substitute Trusts”) under the Trust Act of Korea. With respect to testamentary trusts whose beneficiary is a person living in North Korea, whether perpetual trusts can be established under the Korea law should be examined. The Trust Act of Korea does not have any provision limiting duration of a trust. Accordingly, perpetual trusts can be established as long as the trusts does not violate the article 103 of Korean Civil Code. In addition, with respect to the Will-Substitute Trusts, it can be disputed whether establishment of the Will-Substitute Trusts only requires testamentary capacity of trustor. Given that the Will-Substitute Trusts is generally established by contract and that there is no specific provision allowing the Will-Substitute Trusts can be established by a person with testamentary capacity only, it should be interpreted that establishment of the Will-Substitute Trusts requires capacity to act of trustor. Additionally, trusts can be effectively used for the purpose of supporting senior citizens or minors who do not have ability to manage their assets. In this sense, trusts plays an importance role in preventing in advance an adult guardian or a minor guardian from abusing their power or embezzling the money. As presented in the court case, the guardianship under the Civil Code of Korea has its own limitation in providing the aged or children with proper management of their assets. Therefore, the combined system of trusts and guardianship will bring better results to people with special needs.

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