[기획특집] 김성태 교수 정년기념-상사법의 과거, 현재 그리고 미래 : 기업형태로서의 사업신탁에 관한 고찰 -미국 통일제정법상신탁법과의 비교를 중심으로-

이규수 ( Kyu Soo Lee ) 연세대학교 법학연구원 2016 法學硏究 Vol.26 No.1

2011년 개정된 신탁법은 사업신탁이 기업조직의 형태로 활용될 수 있는 제도적기반을 마련하였다. 즉, 소극재산을 포함하는 영업을 신탁재산으로 명시하고, 수익증권과 신탁사채의 발행을 허용함으로써 자본조달 수단을 마련하고, 수탁자는 유한책임신탁의 명의로 거래하여 독립된 거래주체로 인식될 수 있게 되었고, 유한책임신탁제도를 도입하고, 채권자보호를 위하여 수익자에 대한 급부를 제한하며, 합병 및 분할 관련 규정, 청산 및 파산 관련 규정을 두고 있다. 이와 같이 유한책임신탁제도는 기업조직법리로서 재산분리의 면에서 볼 때 수익자의 유한책임 및 수탁자의 책임제한이 인정되어 기업조직의 형태로서 기능할 수 있다. 그러나 제도의 도입과는 별개의 문제로 현재 실무상으로는 기업형태 중 주식회사가 압도적으로 많이 이용되고 있고 사업신탁은 활성화되어 있지 않다. 한편, 사업신탁제도의 발상지이며 사업신탁이 활성화되어 있는 미국에서는 사업신탁의 기업조직적 특성에 초점을 두어 일반 신탁을 규율하는 법과는 별도로 통일제정법상신탁법을 제정하여 사업신탁제도를 발전시켜 왔는데, 그 내용을 우리 사업신탁제도와 비교하여 검토하는 것은 우리 사업신탁제도를 효율적으로 정비하기 위한 개선방안을 모색하는 데에 있어서 도움이 될 것이다. 우리 신탁법상 사업신탁이 실제로 기업형태로서 활용되기 위해서는 사업신탁에 법인격을 인정하고, 수익자에 대한 급부를 제한하고, 수탁자의 자기집행의무를 완화하고, 수익자의 권리 보호를 강화하고, 수익자의 유한책임 및 조직격리를 명확히하고, 조직의 영속성 확보를 위하여 조직변경 및 합병ㆍ분할 관련 규정을 개선하고, 사업신탁의 유형에 적합한 조세제도를 마련하는 한편, 자본시장법을 비롯한 관련법들을 정비하여야 할 것이다. 사업신탁의 유연성의 면에서 볼 때 미국 통일제정법상신탁법의 시리즈 신탁을 도입하는 것도 긍정적으로 검토할 필요가 있을 것이다. 그리고 계약법리에 근거를 둔 일반 신탁법리를 훼손하지 않고, 사업을 영위하려는 자들에게 적절한 수단을 제공한다는 점에서 기업조직으로서의 사업신탁에 관한 별도의 법률을 제정하는 것이 바람직할 것이다. In 2011, the Korean government made a reform on the Korean Trust Act. Especially, the provisions which was newly amended allow the trust to function as a business organization as well as a financial vehicle. To be specific, the businesses including the debts can be clearly stated as the subjects of the trusts. The procurement of the capital is possible through the beneficial certificate issuance trust system and the trust bond system. The trustee can transact under the name of the limited liability trust, and the limited liability trusts can be as independent principal agents of the transaction. For the protection of creditors, the benefits of the beneficiaries have been restricted. And the Trust Act provides the regulations with regard to the mergers, the divisions, the liquidation and the bankruptcy. From the perspective of the asset partitioning, the limited liability trusts can function as a form of business organization with the limited liability of the beneficiaries and the restriction on the liability of trustees. Actually, while corporations are overwhelmingly used as forms of business organizations, the business trusts are scarcely used. Meanwhile, in the United States where the business trusts originated and activated, business trusts have been governed by the separate acts focused on the characteristics of business trusts as business organizations. It is advisable to review USTEA comparatively with the Korean Trust Act for improvement of the Korean business trust system. In order to use the business trust as a form of business organization actually in Korea, the granting of the legal entity, the restriction on the payment to beneficiary, the relaxation of trustee``s duty to perform in person, the reinforcement of the protection of beneficiaries`` rights, the clear definition of entity partitioning and beneficiaries`` limited liability, the improvement of provisions regarding conversion, merger and division for perpetuality of business trust, the establishment of tax system suitable for the business trust types and the amendment or maintenance of the related legislations including the Korean Financial Investment Services and Capital Markets Act are necessary. In addition, it could be helpful to regard the adoption of the series trust in USTEA affirmatively from the perspective of business trust``s flexibility. Furthermore, it is advisable to establish separate acts regulating business trust as a form of business organization in order not to damage the ordinary principles of the trusts that are based on the principles of contract laws by the business organization law and in order to provide the appropriate rules to the persons who intend to do business.

특집 : 국민건강증진사업 추진체계의 확충과 다각화 ; 전기장판에서 발생하는 전자파 노출이 뇌파 및 심전도에 미치는 영향에 관한 연구

이규수 ( Kyu Soo Lee ),김윤신 ( Yoon Shin Kim ),송재철 ( Jae Chul Song ),최성호 ( Sung Ho Choi ),송주현 ( Joo Hyun Song ),안동현 ( Dong Hyun An ),홍승철 ( Seong Chul Hong ) 대한보건협회 2007 대한보건연구 Vol.33 No.1

會社機會 法理의 導入에 관한 比較法的 考察

이규수(Lee Kyu Soo) 성균관대학교 법학연구소 2008 성균관법학 Vol.20 No.1

  In the United States, corporate opportunity doctrine aims at protecting the interests of the corporation by imposing on its fiduciaries such as directors, officers and controlling shareholders the duty of not usurping for their own benefits any business opportunities belonging to the corporation. It is difficult to define the concept of corporate opportunity because of the fact-intensive nature of corporate opportunity doctrine. And many tests have developed for determining whether the fiduciaries of the corporation misappropriate corporate opportunities, for example, the interest or expectancy test, the line of business test, the fairness test and the two-step analysis.<BR>  In Korea, the Ministry of Justice tries to introduce corporate opportunity doctrine into the Commercial Code and the new version of the reform proposal was presented to the National Assembly. However, the new version of the reform proposal has some problems to solve and this article makes some suggestions as follows:<BR>  First, corporate opportunity doctrine is applied to controlling shareholders as well as directors and officers because there are some cases in which controlling shareholders misappropriate corporate opportunities in these days. Second, requirements for procedural fairness in taking corporate opportunities and requirements for substantial fairness in using corporate opportunities are provided rather than written provisions regarding the definition and scope of corporate opportunities. Third, rules of remedies for returning unfair profits are provided besides indemnification for damages. Fourth, rules of the burden of proof are provided. Finally, the definition of usurping corporate opportunities is not limited within the definition of self-dealing because there are some differences between the two definitions.

전자파에 대한 지역사회 주민의 지식수준과 관련요인

이규수(Kyu-Soo Lee),남철현(Chul-Hyun Nam),김성우(Sung-Woo Kim),김귀희(Gui-Hee Kim) 한국보건교육건강증진학회 2002 보건교육건강증진학회지 Vol.19 No.3

外國人投資에 대한 國家安保上 規制

李葵洙(Kyu-Soo Lee) 한국비교사법학회 2006 比較私法 Vol.13 No.4

  Since the Korean financial crisis in 1997, foreign investment in Korea has rapidly increased as a result of deregulation policy on foreign investment. But such a deregulation policy on foreign investment can result in permitting foreigners to acquire the control of the companies whose assets are highly valued enough to be protected for essential national interests such as defence of national security. In case of foreigner"s threat to essential national security, it is allowed to make laws for protection of such national security and from this point of view the recent Korean revised bills in relation to the regulation of foreign investment are desirable in principle.<BR>  However, such plans need to protect domestic national security while encouraging foreign faith in the open and consistent policies of Korea to walk the line between encouraging foreign investment and protecting against threats to national security, and the related problems to be solved are as follows. First, it is necessary to define specifically the term ‘national security’ to include clear guidance on where national security is implicated or not. Second, transparency and specificity should be kept in enacting and applying the other provisions of detailed requirements and procedures. Third, it would be desirable to make a single general review system to protect national security effectively. Finally, domestic shareholder"s property right may be subject to restriction according to the recent revised bill to the Korean Securities Exchanges Act § 199 ②, and it is necessary for regulators to find adequate rules to solve this problem.

비선형 정규모드를 이용한 보의 비평면 자유진동해석

이원경(Won Kyoung Lee),이규수(Kyu-Soo Lee),박철희(Chol Hui Pak) 한국소음진동공학회 2000 한국소음진동공학회 학술대회논문집 Vol.2000 No.1

특집 : 국민건강증진사업 추진체계의 확충과 다각화 ; 전자파 관련 기기별 접촉빈도와 관련 요인 연구

우주택 ( Zoo Tack Woo ),최상복 ( Sang Bok Choi ),이규수 ( Kyu Soo Lee ),김기열 ( Gi Yeol Kim ),류장근 ( Jang Gun Rhu ),심규범 ( Kyu Bum Shim ),문기내 ( Ki Nae Moon ),남철현 ( Chul Hyun Nam ) 대한보건협회 2007 대한보건연구 Vol.33 No.1

미세 환경 별 전자장 노출 특성

김윤신(Yoon-Shin Kim),현연주(Youn-Joo Hyun),조용성(Yong-Sung Cho),최성호(Sung-Ho Choi),이규수(Kyu-Soo Lee),홍승철(Seung-Cheol Hong) 한국실내환경학회 2005 한국실내환경학회지 Vol.2 No.1

Electromagnetic fields of all frequencies represent one of the most common and fastest growing environmental influences, about which anxiety and speculation are spreading. All populations are now exposed to varying degrees of electromagnetic field, and the levels will continue to increase as technology advances. The objectives of this study were to measure and analyze emitting characteristics of extremely low frequency electromagnetic field at micro-environments. We measured magnetic field at microenvironments such as home, school, educational institute, internet pc game room for children attending the primary school. The range of time weighted average (TWA) of 60 ㎐ EMF in micro-environment were 0.26~7.62 mG and the highest TWA 7.62 mG was measured in PC room possessed more than 50 computers. We will measure personal exposure levels of primary students and analyze correlation between major micro-environments and personal exposure level.

검진센터를 방문한 성인에서 64-MDCT를 이용한 뇌동맥 관상동맥 질환의 발견율에 대한 고찰

범희남(Hui Nam Beom),최연상(Yeon Sang Choi),선종백(Jong Baek Seon),최성관(Seong Gwan Choi),이규수(Kyu Soo Lee) 대한CT영상기술학회 2008 대한CT영상기술학회지 Vol.10 No.1

Purpose To evaluate the detection rate of cerebrovascular and coronary artery disease (CAD), which were major cause of sudden death, on the population visiting health screening center using 64-channel multi-detector computed tomography (MDCT) and evaluate the usefulness of MDCT on health screening. Materials and methods 730 patients (M:F=531:199) were included in this study. Simultaneously, they underwent cerebral and coronary MDCT for health screening, MDCT was performed with 64-channel MDCT (Light Speed VCT, GE Health Care, USA) using 0.625mm of slice thickness and 0.35~0.5sec of tube rotation time. Data analysis was based on reading paper. We evaluated the detection rate of cerebrovascular disease including intracerebral aneurysm, steno-occlusive disease, brain tumor and coronary artery disease including presence of calcific plaque and stenotic luminal narrowing of coronary artery. Results The evaluated detection rate of cerebrovascular disease on health screening MDCT was 5.6% (41/730) including 34 patients (82.9%) with intracerebral aneurysm Among these, posterior communicating artery (P-com) aneurym was most commonly detected 18 patient (43.9%). In terms of corona1y artery disease, 217 paitents (29.7%) had calcific plaque and 47 patients (6.4%) had stenotic intravascular luminal narrowing of coronary artery. 14 of 217 patients (6.5%) had calcific plaque was classified into high(>400 calcium score) risk group of CAD. 19 of 47 patients (40.4%) had significant intravascular luminal narrowing was recommended coronary angiography for interventional treatment. Conclusion Cerebrovascular and coronary MDCT is expected to useful diagnostic tool for health screening because that can be used to classify the high risk group of cerebrovascular and coronary artery disease with sudden death potential.

일부전자파 발생제품 사용에 따른 인체의 신체자각증상 조사

이규수,남철현 대한보건협회 2002 대한보건연구 Vol.28 No.3

This study was conducted to examine harmful effect on health and preventive attitude by the use of equipments which generate electronic wave in order to provide basic data for development of preventive education program 2,000 people, who lived in five big cities and five small and medium cities, were selected ad subjects of this study. the data were collected from March 1, 2001 to August 31, 2001. The results of this study are as follows. According to the proportion of physical symptoms felt by the respondents due to the use of the electronic or electric products, 30.1% of them did not feel any symptom, while 20.4% of them felt headache 19.6% of the respondents felt dizzy and 11.1% felt migraine. 10.4% of them had amnesia, while 8.4% felt nausea. The physical symptoms displayed significant relationships with the variables of TV, cellular phone, electric game instrument, microwave oven, electric pad or blanket, vacuum cleaner, electric razer, electric tool, vessel washer, and hair drier. In the case of the proportion of physical symptom felt by those who visited medical institutions, 'headache' was 7.6% and 'digestive trouble' was 10.7% 'Lumbago' was 9.3%, while 'oral disease' was 8.7%. 'The other symptom' was 33.0% and 'no symptom' was only 5.4% These showed significant relationships with the variables of TV, cellular phone, computer, electric game instrument, microwave oven, electric pad or blanket, vacuum cleaner, air conditioner, electric razer, vessel washer, hair drier, and laser printer. Nowadays, it can be said that human beings can not live without electronic products. It is necessary to use them in order to enhance quality of life. Therefore, education and publicity concerning harmful affect of electronic wave on health is needed because people's opportunity of exposing to electronic wave is increasing. Especially, it is the demands of the times to provide information on knowledge of each equipment which generate electronic wave. The government, the product manufacturing companies, related social organizations, and education institutions must make efforts to develop the education program which is needed to make people have right knowledge and attitude..