대륙법 국가에 의한 신탁법리의 수용 = Reception of Trust: Still Going Strong

다국어 초록 (Multilingual Abstract)

Since 19th century, English trust became one of the hottest topics in the comparative studies. Many scholars from civil or common law world maintained it would be impossible for civil countries to import the trust. However, beginning with Lichtenstein, a lot of civil law countries accepted the trust into their legal systems and the list is still growing in 21th century. In some countries, the reception was through the court, whereas in others through the legislation. In some countries, the reception was motivated by investment needs, whereas in others to keep ahead with neighbor jurisdictions. Despite different reasons and ways for the reception, they all encountered “basic problems” of trust reception: (1) Who is the owner of the trust property? (2) If the trustee misdirects the trust property, can the beneficiary claim the trust property against a third person? (3) If the trustee goes bankrupt, can the beneficiary claim the trust property against the bankruptcy estate? All these questions have something to do with the basic notions of the civil legal tradition going all the way back to the Roman law. Civil law countries which accepted the trust have been struggling with these questions, suggesting various answers. However, those answers are not perfectly in accord with the basic notions of the civil law countries, nor perfectly equivalent with the common law trust in legal or functional perspectives. There are a lot of gaps which need to be filled by both civil and common lawyers.