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A Consideration of the Trust Governing Law in the Secret Trusts of Anglo-Saxon Common Law and the Hague Convention of the Approval of Secret Trusts

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2022, 10(3), pp.223-262
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : July 22, 2022
  • Accepted : August 25, 2022
  • Published : August 31, 2022

Jongho Kim 1

1호서대학교

Accredited

ABSTRACT

Secret trusts are difficult and incomprehensible trusts. According to the classification of the trust, it is very difficult to accurately locate where it is located. Therefore, it is necessary to discuss what kind of trust is similar to a secret trust in the classification of the trust. It seems to be understood as legal trust, constituent trust, and presumed trust in Korea. I don’t think it is possible to say unequivocally since secret trusts include complete secret trusts and semi-secret trusts. A secret trust can be essentially said to be an obligation under the equity law in which property is passed on to the trustee for the sake of his intended goal during the survival of the testator. Secret trust occurs when the testator performs the gift of property with the following intention. That is, when the recipient made a promise to hold it as a trust for a third party whose identity is not clear in the will. In addition, a complete secret trust occurs when the bequest, which is the object of the trust, is completely entrusted to the beneficiary by the appearance of a will, and both the facts of existence of the trust and the agreement (conditions) are hidden (confidentially). A semi-secret trust arises when the bequest, which is the object of the trust, is entrusted to the beneficiary as the trustee in the appearance of a will, and the trust’s terms and conditions are only hidden in such a trust. As for the establishment of a trust and the method of determining the governing law (“Trust Governing Law”), the general rules for the application of the law (“General Regulations Act”) do not have prestigious provisions and are left to interpretation. In addition, although precedents of trust cases including external factors have recently emerged, there have been few cases of disputes between the parties over the provisions of the governing law in the trust contract. There was no case in which the position of precedent was stated. In this situation, it can be said that clarification of the interpretation of the general rule of law by theories is important, but most of the interpretation of the general rule of law that has been built up by previous studies on international trust issues was greatly influenced by the British-American conflicts of international law that presupposes traditional trust practice. The review in terms of whether or not they are valid even in the present day in which trust practice is diversified was in a state of insufficient. Therefore, this paper attempted to present a reasonable solution to the disputed issue in interpretive theory of the General Regulations over the method of determining the governing trust law from the premise of modern trust practice.

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