유류분과 신탁

• 영문명: Forced Heirship and Trust
• 발행기관: 한국가족법학회
• 저자명: 김형석(Hyoung Seok Kim)
• 간행물 정보: 『가족법연구』家族法硏究 第36卷 1號, 243~286쪽, 전체 44쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2022.03.31

영문 초록

In South Korea, there is an academic dispute whether an asset transferred to a trust could be clawed back based on the claimant’s forced heirship and, if the answer is positive, in which shape this claw-back would take place. The author of this article tries to give a comparative overview as to this question, analyzing American, English, Swiss, French and German law. Hereby he observes what follows. (1) The claw-back is overall granted. (2) The revocability of trust plays a crucial role to determine the shape of this claw-back. (3) The forced heirship or comparable right guarantees that the claimant demands his or her share from the trust’s capital. The author thinks these insights should be respected when one applies the Korean Civil Code. This means what follows. (1) The claw-back should be granted. (2) The trust in lieu of will (revocable trust) whose life-time interest is vested upon the settlor should be treated as donation inter vivos which takes effect at the settlor s death. The claw-back is to be raised against the trustee or beneficiary into whom the trust’s capital flowed. (3) The testamentary trust should be treated as legacy, the irrevocable living trust as donation inter vivos which takes effect at its settlement. The claw-back is also to be raised against the trustee or beneficiary into whom the trust’s capital flowed.

목차

Ⅰ. 문제의 제기

Ⅱ. 비교법적 개관

Ⅲ. 공통의 경향과 우리 법에 대한 시사

Ⅳ. 마무리

키워드

유류분 신탁 철회가능신탁 유언대용신탁 선택적 상속분 forced heirship trust revocable trust trust in lieu of will elective share