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하단의 논문은 서울대학교 아시아태평양법연구소 아시아태평양법 국제교류기금의 학술연구비 지원을 받은 학술논문입니다.



오영걸, Trusts in South Korea - Towards an Independent Fund Mechanism(2022)

아태법
2023-04-21
조회수 463

오영걸, "Trusts in South Korea - Towards an Independent Fund Mechanism",  Asia-Pacific Trusts Law, Volume 2 : Adaptation in Context(2022), pp.311-325.

<Introduction>

This chapter deals with the view accepted by academics and practitioners of the theoretical foundation of trusts law in South Korea. Trusts law is a legal institution that originates in the common law tradition. However, it has been widely transplanted into many civil law jurisdictions. South Korea, being a Romano-Germanic civil law jurisdiction, is among them. But a distinctive difference can be found in South Korean trusts law. This difference mainly arises from the need to adapt the common law trust to the local Romano-Germanic legal mentality. That adaptation has resulted in Korean law focusing on the independent nature of trust funds, rather than the proprietary dimension of the trust. In other words, the common law proprietary regime of the trust has become an independent fund mechanism. This fundamental change in relation to the theoretical structure of trusts arose when trusts law imported into South Korea in 1961. This chapter discusses the legal effects arising from this independent fund mechanism, explores why the common law proprietary regime has been rejected, and explains how effects similar to the proprietary regime have been achieved by dissimilar means in South Korea. In the following sections, we will examine the independent fund mechanism(section Ⅱ), and then discuss the reasons the proprietary regime was not implemented on South Korea's civil law soil(section Ⅲ)  .

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