Korean amended Trust code(Capital Market and Financial Investment Services Provider Act) has provisions on testamentary trust, will-substitute- trust(there is no similar trust in common law) and Consecutive beneficiaries trust and so on. this article discusses some issues related to new trust types. these type do not match up with typical trust types in common law. this article focus on discrepancies between trust code and civil law, trust code and trust business act.
Discrepancies between trust code and civil law has two problem. one is a conflict with heritorship, the other is about rule against perpetuities
First, A typical institution as a device of succession in the Civil Law is heritorship in the law of succession. but now, most the aged want to deal with inherited property by his own will, not by inheritance Act.
The purpose of new types in trust code is to meet the aged"s demand. but new provisons come into conflict with heritorship in civil law. - On Korean Civil law, an inheritee should guarantees legal reserve of inheritance for all legal heirs.
To encourage the Provision of new type trust, Considerable modification of the existing system(legal reserve of inheritance) is needed. because testamentary trust, will-substitute-trust and Consecutive beneficiaries trust infringe on heirs rights.
Secondary, Consecutive beneficiaries trust in korean trust code has no limitation of perpetuity period, different from Japan trust code as mother law. so, some call for the reform of perpetuity period. when occasion demands. others content that koran trust code have no use for perpetuity period provision.
Ministry of Justice publish the cause of no perpetuity period provision in the official gazette. they say that trust is not inheritance. usually civil law does not regulate duration of right.
But in many case the rule against remoteness is necessary to protect legal stability of interested persons.
Discrepancies between trust code and trust business act is restriction on a fiduciary capacity in trust business act. in koran someone want to set up trust business have to accreditation from Financial Services Commission. but new type trusts are for personal purpose, to help a ward, minor enterprisers with intent to succeed the management rights. we need to streamline administrative procedures.
Finally I hope that many jurisconsults take a profound interest in the nature of trust to do a few loose ends in my search to tie up.