신탁법상 유한책임특약의 효력에 대한 고찰 - 관리형 토지신탁 사업에서 유한책임특약의 효력에 대한 검토를 통하여 -

관리형 토지신탁 사업의 유한책임특약 효력을 검토했다.

Since the current Trust Act newly established a system, ‘limited-liability trust,’ the effect of a ‘special agreement on limited liabilities’ which may circuitously avoid the various obligations and limitations imposed on the ‘limited-liability trust’ should not be acknowledged. This is because no obligations and burdens on the Trust Act are imposed on the ‘special agreement on limited liabilities’ unlike the ‘limited-liability trust,’ and in terms of comparative law, there is no legislation or case law limiting the effect of the ‘special agreement on limited liabilities’ in South Korea, yet.

In addition, in a real estate development project, the ‘special agreement on limited liabilities’ is used as a means of shifting a trust company’s risk in business or that of claim for compensation to the trust creditor, and furthermore, in that the conclusion of the ‘special agreement on limited liabilities’ is forced only on the opposite party in a transaction in a position subordinate to the trust company, the conclusion of the ‘special agreement on limited liabilities’ is very likely to come under an unfair transaction.

In addition, in that ‘special agreement on limited liabilities’ is not even officially noticed, unlike the ‘limited-liability trust,’ imposing defensibility concerning the ‘special agreement on limited liabilities’ may cause a contingent damage to a third party other than the opposite party.

Therefore, separately from the ‘limited-liability trust,’ if the effect of the ‘special agreement on limited liabilities’ is acknowledged, the trust company would enjoy the benefits of the restriction on liability through the ‘special agreement on limited liabilities’ rather than using the ‘limited-liability trust’ with a lot of obligations imposed on that and avoid obligations according to it, and the ‘limited-liability trust’ on the current Trust Act would fall into a merely nominal system, unlike the purpose of introduction.

As the current Trust Act newly established fiduciary obligations correspondingly as it introduced a ‘limited-liability trust’ system, for the fiduciaries to enjoy the benefits of the restriction on liability, the fiduciary should also bear obligations corresponding to that on the Trust Act. In addition, the intent of Korean legislators that have not newly established provisions similar to the ‘special agreement on diminished liability’ newly established by the Japanese Trust Act, completely revised in 2006 in the current Trust Act may be interpreted as not allowing a ‘special agreement on limited liabilities’ which may circumvent the newly established ‘limited-liability trust’ system.

Thus, the effect of the ‘special agreement on limited liabilities’ may not be acknowledged unless there are explicit laws and regulations, and even if the effect is accepted, the effect should restrictively accepted only if mandatory provisions on fiduciaries at the level same as that of obligations that the fiduciaries should bear in the ‘limited-liability trust’ have been reflected in the ‘special agreement on limited liabilities,’ and moreover, they should be controlled according to the act on the regulations in the terms.