不動産信託制度의 活性化 方案에 關한 硏究 : 土地信託制度를 中心으로 = (A) Study On The Vitalizing Plan Of Real Estate Trust System

다국어 초록 (Multilingual Abstract)

Growing demand of the land prompted by rapid industrialization and urbanization since after 1960's and the practice of reckless and speculative transaction and dealing land have resulted in serious damage to healthy real estate market as well as sudden and unexpected serious hike in the price and consequently influenced adversely on national economy. Now again at this point in time getting relieved from the economic system called IMF, it is anticipated that another land problem and it demands reasonable real estate policy be explored and sought critically.
Today, the land is considerably being restricted of even its principle of respect in the possessive rights, one of three major principles of the modern civil law to the publicity. The efficient utilization of the land in our country, narrow and unspacious national land in comparision with its population, more higher priority than other fields should be given to the consideration.
One of the most critical needs in our country will be the separation in the real estate of possession and utilization. This mechanism shall be pursued as a national policy from nation's comprehensive aspect to lead toward effective utilization for national land. In general, various social systems are apt to rise and/or fall according to the needs of society. Currently, our country is in transition to an economic society and the necessity of real estate trust system, an important system in the object economy, is becoming conspicuous. When this system is more supplemented and developed to an efficient system the seperation and utilization can be made concrete and lively-wise.
As for our country, real estate trust system has been introduced not long enough, less than 10 years, and understanding and recognition of the real estate trust by our people are insufficient. Accordingly, this system has not yet proceeding actively. It can't be denied that such system to vitalize the real estate trust and permissible circumstances and systematic build-up have not become satisfactory to assume.
Herewith some policies and alternatives for vitalization of real estate trust are presented in this thesis. Plans for reform learned through the analysis of operation manner are summarized as follows:
First, we have such laws in relation with the real estate trust as real estate trust-related law (Trust Law, Trust Business Law, Secured Debeture Trust Law, Securities Investment Trust Law) and Real Estate Registration Law, Land Zoning Project Law, City Redevelopment Law, Law governing on housing construction and supply, National Property Law, Local Financial Law, and so on. Real Estate trust is a system to expedite the utilization of land by means of judicial law-related vehicle of trust. For the end of vitalizing this system it must be accompanied by legislative realignment and policy-guided support.
Second, reforming methods in the taxation system in connection with the real estate trust will be necessary to be taken. Real estate trust is a mechanism able to overcome the restriction on the flow and fluctuation of real estate according to the legislation of land publicity concept and implementation of real estate name entry system.
For its vitalization, it is thought desirable that the preferential measures would be taken on the incomes gained through the real estate trust process to compare with common and general cases. Another thing, which should be reformed in the field of taxation system, is; it must be quite natural for the beneficiary in possession of trust-land is levied. However, in reality, business process does not deal with the structure of real estate trust reflected and accordingly it happens to produce some of the problems in the transaction. In a word, our current tax system has been established with no foreseen inception of the real estate trust and therefore the application of taxation on the real estate trust is not definitely implemented. In this regard, it must be fully reflected and also, trust business will reveal the source of taxation clear and accurate, the expansion and growing of the trust business will in a long range prospect contribute to the increasing of tax revenue. As such, government policy-oriented support for the vitalizing of trust business would be rendered.
Third, as a means of renovation of the operation of the project, public credit on the trust agencies must first be secured. Real estate trust is closely associated with the utilization of the national land to include the disposal and development of land and so the public interests with them are very meaningful and strong and demanding high standard credit of the trustee agencies. In addition, in order to lead the real estate owners into the trust market it will require recognition of financing for real estate trust and supporting of development expense. Accordingly, securing of flexibility and capital procuring ability will have close relation with the maintaining of public credit. In particular, the rate of interests of the loan(borrowed money) will affect the profitability of the business and the possibility whether or not capable of procuring fund will act as a factor resulting to success or failure.
In most cases, the trusters are consigning the real estate with the trust firm due to the difficulty and problem in raising fund. In other word, for vitalizing real estate trust business, a certain structural mechanism that can facilitate to procure more easily and moderately the finance in connection with the development of trust shall be explored and established. As thus, it will respond to the demands of the trusters. As for a systematic improvement measure for securing stabilized investment resources for real estate trust business, real estate investment trust system pursuant to REITs which is being actively practiced in the United States, making real estate into securities, back-up of long term finance system and preferential treatment of credit, et cetra, shall be explored and considered. Since the real estate is in essence regarded a property it must be associated with money, otherwise, it would become deformed real estate trust system. In this regard, matters to be reconsidered in the operation and running of current real estate trust system being focused on the real estate have been brought to consideration. And, reconsideration of business performance ability and scientific and systematic operation together with publicity supported by professional specialists shall be implemented and wider field of selection with varified trust merchandise to those who desire to utilize the real estate trust policy.
Fourth, it can't overemphasized that the success and/ or failure of real estate trust depend on how to find out and exploit real estate owners in need of this system and produce as much profits as possible. The owners will necessarily compare the profitability gained by the trust with the profitability generated through other development option and / or differential balance of profit in the transfer of the real estate in kind. And, the trustee also will compare in the operation of the loan with other investment business in efficient and study on. Accordingly, the trustee, in the execution of the business, may disburse necessary expense such as differential interests of loan to secure the trust-related compensation and in addition, considerable high level of dividens can be expected to vitalize the mechanism.
In the other hand, the uncertainty of business prospect remains a problem with its established long term of the trust, and practically in the lease business, the unoccupancy(vacancy) of rooms, seasonal change in demand, change in macroscopic economical factors, so on, may impact on the profit rate and it will diminish and dissatisfy the will of development of land owners and trust agencies. Accordingly, securing of business profitability based on accurate estimate and trust demands must be explored.
Fifth, it is considered most important that national consensus and harmonized consciousness on the land utilization shall be focused; expansion of substructure in the study of real estate, build-up of credit, real estate owners desire for efficient utilization shall be heightened, people's understanding and recognition with the utilization shall be inspired, and advocating that new land supply could be sought through utilization and development of land rather than possessing the land.
Sixth, the effective and efficient utilization of state-owned and/or public land being left idle land not in use, shall be explored, and in order to meet and satisfy the varified land demands of the actual user, it will be necessary to vitalize the trust of the national and public land, it is presented and brouched from the aspect of policy-wise and financial demand to be necessary.
So to speak, national and public land trust will aim at gaining financial revenue of the government and the local autonomous administration, and on the other hand, it will be an effective policy to seek change in the management and administration of national and public lands from an aspect of expansion of land on hand, as well. And the reason why the government and/or local autonomous agency possess the lands will be the same as the justification for the existence of the administration toward mainly to support and service for the people. As such, the nation (government) and the local autonomous agencies should build as many public utility facilities as possible through the trust of national and public lands and make utmost efforts to promote the welfare for the people. And, for the vitalization of real estate price shall be prevented so as not to obstruct the deep-rooting of this system in an effort with continuous control and elimination of real estate speculation and price stabilization.
In conclusion, the reform measures presented herein could be taken into consideration differently along as that is pursued, but for the resolution of the problem in the resources in the limited and insufficient space of the country those measures proposed are considered to respond to common sympathy. These reform measures have been presented from an aspect of efficient utilization of national land. However, to make the reform measures more comprehensive and realistic, follow-on study in depth shall continue as ever.

목차 (Table of Contents)

• 目次 = ⅰ
• 第1章序論 = 1
• 第1節 硏究의 目的 = 1
• 第2節 硏究의 範圍 및 方法 = 2
• 第2章 不動産信託制度에 關한 理論的 考察 = 4
• 第1節 不動産信託制度의 法理論的 考察 = 4
• 1. 신탁의 의의 = 4
• 2. 부동산신탁의 의의 = 5
• 3. 신탁관계인 = 6
• 第2節 不動産信託 法制와 類型 = 9
• 1. 부동산신탁 법제 = 9
• 2. 부동산신탁의 유형 = 12
• 3. 국유지신탁제도의 업무구조 및 절차 = 16
• 第3節 不動産信託의 特性 = 22
• 1. 부동산신탁의 경제적 특성 = 22
• 2. 부동산신탁의 유용성 = 28
• 第4節 外國의 不動産信託制度 = 31
• 1. 일본의 토지신탁제도 = 31
• 가. 일본 토지신탁의 사회·경제적 위치 = 31
• 나. 토지신탁의 운영개황 = 33
• 2. 미국의 부동산신탁제도 = 36
• 가. REITs에 의한 부동산투자신탁 = 36
• 나. REITs의 특징 = 37
• 다. 부동산 증권화 = 40
• 第3章 不勳産信託制度의 運營實態와 間題點 = 42
• 第1節 우리나라 不動産信託의 沿革 = 42
• 1. 부동산신탁제도의 도입배경 = 42
• 2. 국유지신탁제도의 도입배경 = 43
• 第2節 우리나라 不動産信託의 運營實態 = 44
• 1. 부동산신탁회사의 운영실태 = 44
• 2. 부동산신탁의 활용실태 = 47
• 第3節 우리나라 不動産信託制度의 問題點 = 54
• 1. 사회적 환경여건상의 문제점 = 54
• 2. 토지신탁 사업운용상의 문제점 = 55
• 3. 토지신탁 관련법제의 미비점 = 57
• 第4章 우리나라 不動産信託制度의 活性化 方案 = 58
• 第1節 法 制度上의 改善策 = 58
• 1. 신탁에 관한 법률 = 58
• 2. 부동산등기법 = 60
• 3. 토지구획정리사업법 = 61
• 4. 도시재개발법 = 61
• 5. 주택건설 및 공급에 관한 법률 = 62
• 6. 국유재산법 및 지방재정법의 검토 = 63
• 第2節 不動産信託 關聯 稅制上의 改善策 = 64
• 1. 신탁 관련 세제의 취급원칙 = 64
• 2. 부동산신탁 세제의 정비 = 65
• 第3節 事業運營上의 改善策 = 69
• 1. 신탁기관의 공신력 확보방안 = 69
• 2. 개발자금조달을 위한 제도적 개선 = 70
• 3. 사업수행능력 및 전문인력의 확보 = 77
• 4. 신탁상품의 다양화 추구 = 78
• 第4節 事業收益性 確保 및 信託需要發掘 = 79
• 第5節 社會的 與件上의 改善策 = 81
• 1. 부동산신탁 연구의 저변확대 및 신뢰형성 = 81
• 2. 부동산 소유자의 유효활용 욕구 제고 = 81
• 3. 부동산신탁에 대한 국민의 인지도 제고와 홍보 확대 = 82
• 第6節 國·公有地信託의 活性化 方案 = 83
• 1. 국·공유지신탁의 활용 기준 = 83
• 2. 국·공유지신탁의 활용 형태 = 84
• 第5章 結論 = 87
• 參考文獻 = 92
• ABSTRACT = 95