신탁제도를 통한 미성년자 보호에 관한 연구

Abstract

This study on protection for minors through trusts starts from realizing functional limitation of the guardian system under the Civil Code of Korea (the “Civil Code”). A minor, without his biological or legal parents, has a guardian who has a general legal power to act on behalf of a minor; provided that the Civil Code provides that certain transactions, including a sale of real property owned by the minor, must obtain an approval from the association of family members of the minor. This is regarded as a preventative measure for protecting minor’s interests from the guardian abusing his power. Practically, however, this limitation does not work properly; the guardian has a control over the association of family members because such members usually consist of a spouse or siblings of the guardian. For this reason, there exist many court cases nullifying the guardian’s legal act on behalf of the minor. Given that the guardian system under the Civil Code has its own limitation, a trust can be a very useful device to protect the minor’s interests. In the U.S., support trusts are widely used for managing the assets to be inherited to their children as a substitute way of inheritance. Using flexibility in design of the trusts, the children may become beneficiaries of the support trust upon their parents’ death and the trustee manages the inherited assets (i.e., trust assets) and distributes the children such an amount of money in the form of trust interests as required for their accustomed living until they become a majority. The trustee is generally not allowed to sell the trust assets and the trust assets themselves will be transferred to the children when they become major in accordance with the terms of conditions of support trusts established by their parents. In this way, the inherited assets can be protected and reserved until a minor becomes major. The trusts have not been widely used in Korea since Korea is a civil law country and not familiar with trust system. However, due to flexibility in design of the trusts, the demand for various types of trust transactions, such as real property development trusts and welfare trusts, is increasing in Korea Additionally, an entire amendment of the Trust Law of Korea (the “new Trust Law”) was made to accommodates the demand for trust transactions and will be effective from July 2012. Trusts can be effectively used in Korea for the purpose of supporting minors by managing their inherited assets as Korea gets familiar with the trust system under the new Trust Law.