신탁계약의 법적 성질

초록

Under the korean Trust Code a trust can be created by contract or will(art. 2). Though trusts are generally settled by contract, the nature and legal characteristics of the contract have not yet been examined properly. Indeed in the civil law countries the private trust originated from common law jurisdictions does not exist as a general form, and its central elements seem to run counter to important tenets of civil law doctrine. There fore analyzing and interpreting the trust as a legal institution, the conceptual and historical differences should be deliberately considered. A trust is created by the agreement between settlor and trustee, even before the transfer of property to trustee. The settlor conveys property to the trustee, who manages it as a fiduciary for the benefit of the beneficiary. But the conveyance is not the requirement for the contract itself. Even though the parties of the trust contract are settlor and trustee, the trust involves three person, settlor, trustee and beneficiary. For that reason the trust contract is sometimes classified into a contract for the benefit of third parties. But in contrast to that kind of contracts it has many characteristics: partitioning of assets, fiduciary duty of trustee, rights of beneficiary. The principal benefit of trust contract lies in its ordering of relationships between the parties and third parties with whom they deal, relationships that can't be rearranged easily by any other kind of contract. And the revocable trust can't be permitted unless the right of revocation is granted to settlor in the contract.

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