擬制信託(Constructive Trusts)의 理解

• 영문명: Constructive Trusts: A Civilian Approach
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 오영걸(Wu, Ying-Chieh)
• 간행물 정보: 『비교사법』比較私法 제18권 제4호, 1263~1308쪽, 전체 46쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2011.11.30

영문 초록

The main purpose of this work is to provide a proper understanding of the English law of constructive trust for the civil lawyer in Korea. The work introduces seven cases in which trust arises by operation of law under English legal system: those cases are as follows: Dispositions in Breach of Trust; Recipient Liability and Dishonest Assistance; Breach of No-Profit Rule; Acquisition of Property by Killing; Mutual Wills; Vendor-Purchaser Constructive Trust; When Settlor/Doner Has Done Everything He Can. Lawyers in civil jurisdictions normally consider the trust arising by operation of law as a trust relationship similar to a declared trust. The work argues that it is a misconception. In fact, considering that a beneficiary’s right is commonlyregarded as a proprietary right in its nature, imposition of a constructive trust in some English cases actually denotes the fact that a proprietary right is generated by operation of law in order to prevent some unjust consequences in individual cases. And, a constructive trust even arises sometimes when trust property never exists (i.e.,in cases involving dishonest assistance and knowing receipt); this tells us that the person called constructive trustee in those cases is actually not a person obliged to hold an asset on trust for another, thus, not a trustee at all; rather, he only owes a duty that requires him to make some monetary compensation to the beneficiary; and this obligation is established by operation of law. Therefore, lawyers in civil jurisdictions need not to conceptualize the English constructive trust as something corresponding to a declared trust: The reason it has been called constructive trust in England is due to its unique legal history that had divided its court system into common law court and equitable court. Since Korea and other civilian jurisdictions have not shared the same legal tradition and history, civil lawyers must grasp its underlying structure; it is a mechanism by which either a proprietary right or a personal right is created by operation of law.

목차

Ⅰ. 序論

Ⅱ. 의제신탁(Constructive Trust)의 개념

Ⅲ. 擬制信託(Constructive Trust)이 인정되는 事例類型

Ⅳ. 擬制信託(Constructive Trust)에 대한 分析

Ⅵ. 結論: 하나의 법률용어, 다양한 메커니즘

〈참고문헌〉

〈부록〉 Resulting Trust: 設定意思推定型復歸信託과 自動成立型復歸信託

〈Abstract〉

키워드

의제신탁 설정의사신탁 복귀신탁 제정법신탁 법정물권 법정채권 비교법 제도적ㆍ구속적 유형한정의제신탁 구제적ㆍ재량적 유형비한정의 제신탁 constructive trust express trust resulting trust statutory trust proprietary right by operation of law personal right by operation of law comparative law the institutional trust the remedial trust