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Re-examination of the limitation on the duration of the purpose trust and its basis

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2022, 10(1), pp.206-248
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : February 14, 2022
  • Accepted : February 23, 2022
  • Published : February 28, 2022

Ji, Bong-Han 1,  Kim, Sang-Jin 1

1세명대학교

Accredited

ABSTRACT

The purpose of this paper is to review the rationale for whether the duration of the purpose trust is limited to 20 years. Previous studies on purpose trusts Although it seems that there are a lot of studies focusing on the validity of purpose trusts and the mechanisms that make them possible, these issues are not addressed in this paper. This is to find the meaning of limiting the period of existence on the premise that certain reasonable demands in the purpose trust system are valid. In the order of the detailed review, first, we analyze how the regulation on the limitation of the duration of the purpose trust was formed through discussion with the Trust Law Section (hereinafter referred to as the Trust Law Section) of the Legislative Council (II). Contrary to the explanation of the planning officer above, it seems that the restriction was influenced by the concern that the property prohibited for seizure is being created by the purpose trust. Therefore, we examine the significance of the concern about the creation of property prohibited from seizure and whether it can be resolved by the limitation of its duration (III). We check how the issue of the duration of the purpose trust is being discussed in the United States and the United Kingdom as well as the old law in Japan (IV). Attempts to reexamine (V). It can be evaluated that it is reasonable to set an upper limit on the duration of the purpose trust, but it is difficult to rationally explain the difference in the period for the successor bequest type and continuous beneficiary type trust with the numerical content of 20 years. . Even if such a conclusion is obtained, the upper limit of the duration of the purpose trust under the current law can be interpreted and extended. may consider the above conclusion. In addition, although this paper presupposes the existence of a reasonable request for a purpose trust, if such a request actually exists and the current period of 20 years is insufficient for its realization, there is room for extension of the duration by law amendment. it seems It would be nice to be able to provide a basis for such a future review.

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