법원에 의한 신탁의 감독 - 스코틀랜드 신탁법 개정으로부터의 시사 -

초록

As the use of trusts increases and the discretion of trustees expand, the court's role in supervising trust administration will become ever more important. The Trust Act stipulates the court’s general power of review on trust in Article 105. However, its exercise cannot be expected without provisions regarding the requirements and contents for it. The article 105 (2), which allows the court to order an inspection of trust administration ex officio, lacks efficacy and validity. This is supported by the fact that it is difficult to find cases where the court has exercised supervisory power based on the provision since the enactment of the Trust Act. Until now, however, this issue has been little discussed. Therefore the recent comprehensive revision of the trust law in Scotland becomes useful reference, which expanded court powers and specified the requirements in detail. As far as trust law is concerned, Scottish legal principles are similar to ours, and the Scottish courts have traditionally been passive in intervening in trust administration including trustee’s discretion. But the revised Act expands and encourages court’s role and power on trusts and provides detailed criteria for exercising authority to promote predictability. This legislative directions provide insight into the improvement of our Act. Under the analysis of the Scottish revised Act this article proposes expanding of court's powers. That is, the court's exercise of power must be upon the claim of parties concerned, not ex officio; the various methods and requirements for court’s power of review on trust administration should be stipulated with clear criteria; and correspondingly, the procedures related to the exercise of such powers should be put in order in the Non-Contentious Case Procedure Act.

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