조직법의 물권법적, 계약법적 기초, 조직법의 고유한 특징과 기여1): 충실의무법의 발전 = The Proprietary and Contractarian Foundations of Organizational Law, and Its Original Contribution

다국어 초록 (Multilingual Abstract)

It is argued here that only trusts and corporations are real and complete organizations for the purpose of the private law because only those institutions can transfer and acquire properties on their own names, and can enjoy both protections of ``entity shielding`` and ``owner shielding``. Trust and corporate laws play three main organizational roles through the key means of providing its organization a separate legal capacity that acts as a ``nexus`` for asset partitioning and pooling. The first role that these organizational laws play is the partitioning and pooling of contributed assets through the medium of the new capacity. Their second role is to provide contributors their control and enjoyment mechanism for their pooled asset by designing the ``concept of beneficial shares`` in a new entity. Lastly, these laws offers the ``concept of organ`` for the new entity as an administration mechanism for the pooled asset. These three main organizaional functions performed by these two laws seem to have much similarity to those roles that are performed by either property law or contract law. Firstly, it is argued that organizational laws`` function of asset partitioning and pooling is not much different from the function of asset transfer in property law. Similarly, the concept of beneficial shares in a new entity is not much different from the concept of shares in joint-owning property under a joint ownership. Lastly, the concept of organ for a new entity resembles much mandatee agency for his mandator. From these similarities of the functions, it is argued that organizational laws have been constructed upon proprietary and contractarian foundations. This paper also deals with special nature of the organizational laws and their original contribution. As the trust and corporate laws provide a organization a new legal capacity as a nexus for asset partitioning and pooling, there always happens a separation of formal owner and beneficial contributors. It is argued that this special environment resulting from this separation has necessitated formal owner``s loyalty duty to beneficial contributors, and now both organizational laws have become the most important sources of fiduciary law.