Trust Agreement Research Articles

부동산 명의신탁과 불법원인급여 성립 여부에 대한 고찰

부동산실명법이 시행된 지 21년이 되었다. 동법 제4조는 명의신탁을 무효로 규정하고, 명의수탁자(title trustee)가 이를 처분할 경우 제3자의 권리취득을 인정하고 있다. 한편 명의신탁자는 신탁 재산 회수가 보장되고 있다. 결국 명의신탁자는 동법에 의한 형사처벌을 받는 것 이외에 별다른 민사상 불이익을 받지 않는데, 그러한 형사처벌은 동법 제정 이전에 제정된 부동산등기특별조치법만으로도 충분하였다. 그렇다면 대법원 판례를 통해 인정되어 온 명의신탁을 무효로 선언한 의미밖에 없는 부동산실명법을 별도로 제정해야 할 하등의 이유가 없다. 그런데 대상판결(대법원 2016. 5. 19. 선고 2014도6992 전원합의체 판결)은 그동안 횡령죄의 죄책을 물어온 중간생략등기형 명의신탁에 대하여 횡령죄의 성립을 부인하고 있다. 계약명의신탁에 대해서는 이미 횡령죄의 성립을 부인하고 있었다. 양자 간 명의신탁은 여전히 횡령죄의 성립이 가능하지만 다른 경우처럼 변경되어야 할 것이다. 투기, 탈세, 강제집행면탈 등 탈법을 동기로 하는 명의신탁은 반사회질서행위에 해당된다고 보아야 한다. 대법원은 그 동안 불법원인급여에 대하여는 소유권이 이전되었다는 이유로 횡령죄의 죄책을 부인하여 왔다. 대상판결을 통해 중간생략등기형 명의신탁에 대하여 횡령죄의 책임을 묻지 않는 대법원의 태도는 명의신탁행위를 반사회질서행위로 보아 명의신탁자의 권리를 보호해 주지 않겠다는 결단이라고 하겠다. 대법원은 범죄자인 명의신탁자의 신탁재산반환청구권을 보장할 것이 아니라, 명의신탁약정에 의해 제공된 재산을 불법원인급여로 보아 그 반환청구권을 부정함으로써, 부동산실명법이 달성하고자 하는 목적을 달성할 수 있도록 보장되어야 할 것이다.

IMPLIKASI KEGIATAN USAHA PENITIPAN DENGAN PENGELOLAAN (TRUST) DALAM AKTIVITAS PERBANKAN TERHADAP PEMBAHARUAN HUKUM PERDATA INDONESIA


 The issuance of Bank Indonesia Regulation No. 14/7/PBI/2012 regarding Trust add more types of agreements in banking practice. From the legal view, the concept of trust is still debatable, given the concept of trust derived from the Anglo-Saxon legal system that recognize dual -ownership. This concept is not recognize in the legal system agreements in Indonesia, but the existence of the trust agreement is possible based on the principle of freedom of contract in contract law. In practical terms, the use of the concept of trust will intersect with the interests of a third party. Some legal issues have been research in this study are how the Trust agreement under the Indonesia Law of contract; how Bank responsibility as Trustee's for any losses, and how the implications of the Trust against renewal Civil Law. This study utilizes a descriptive analysis, using normative juridical approach. We have conclusion such as: Trust is an agreement that was developed in banking practice based on open systems and the principle of freedom of contract which adopted from Law of contract Based on the agreement, Banks as a trustee shall be liable for losses that incurred caused by Bank negligence in carrying out its functions. Given the concept of custody had unrecognized dual ownership in the Indonesian legal system; hence it is necessary to reform the civil law to accommodate trust activity.
 Keywords: Trust; dual-ownership; civil law.

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This paper analyzes the main tax consequences for the foreigners that invests in Colombia through a commercial trust agreement. Depending on the purpose and ...

Vegetation of Little Bora Nature Conservation Trust Agreement, North Western Slopes, New South Wales.

The vegetation of the Little Bora Nature Conservation Trust Agreement property (560 ha in area), 8 km south east of Bingara (lat 29° 55’S long 150° 37’) in the Gwydir Shire and within the Nandewar Bioregion is described. Eight vegetation communities are defined based on flexible UPGMA analysis of cover-abundance scores of all vascular plant taxa. These communities are mapped based on ground truthing, ADS40 imagery interpretation, topography and substrate. Communities described are: 1) Melaleuca bracteata – Eucalyptus melanophloia – Eucalyptus camaldulensis Woodland, 2) Callitris glaucophylla – Eucalyptus melanophloia – Eucalyptus albens Woodland, 3) Callitris glaucophylla – Eucalyptus melanophloia – Brachychiton populneus Woodland, 4) Eucalyptus albens Woodland, 5) Eucalyptus caleyi – Eucalyptus albens – Callitris glaucophylla Woodland, 6) Callitris glaucophylla – Eucalyptus melanophloia – Eucalyptus albens Woodland, 7) Austrostipa verticillata – Austrostipa scabra Derived Grassland, 8) Eucalyptus melliodora – Eucalyptus dealbata Woodland. A total of 232 vascular plant taxa were found of which 14% were considered exotic in origin. 66 ha of listed threatened communities were mapped along with populations of a currently listed Extinct plant (TSC Act) Dodonaea stenophylla.

Default in Argentina, Repercussions in New York: Self-Settled Trusts and Choice of Law

A choice of law provision in a trust agreement, as is the case with any contract, may not be enforceable against persons who are not parties to the agreement. This point was recently reinforced by the U.S. Court of Appeals for the Second Circuit in EM Ltd., et.al. v. The Republic of Argentina (“EM, Ltd.”). The case involves the validity of a self-settled trust created outside of the U.S. by parties who have basically no connection to the U.S. in terms of domicile or residence. It is noteworthy that EM, Ltd. did not arise in the context of estate or asset protection planning. This brief article concerns that case.

Prospects for Trust in Russia: The Perspective as Seen from 2010 and 2011 Drafts Amendments to the Russian Civil Code

AbstractThe reader of this work is offered two theses by the author: Firstly, the myopic focus on the privatization in the early 1990s reflected the general view that this was the 'only' way to divest the state of property. Because of the predominance of this policy, the state—as an owner—has been deprived of the possibility of managing state property efficiently and effectively in another way short of total divestiture of ownership; i.e., transferring state-owned assets by way of a trust (trust agreement, trust management) to professional mangers. Secondly, that the trust doctrine is not totally alien to Russian legal tradition as many renowned Russian law thinkers argued in the 1990s for example and continue to believe to this day. Indeed, the issue of whether or not the trust doctrine—as a construct involving 'split' ownership—can be 'transplanted' into Russian legal soil has been a particularly contentious part of law reform in post-Soviet Russia continuing through the present. After highlighting the 'rush to privatization' mentality in Russia, the author of the present article takes the reader into nineteenth-century Russian legal theory as she demonstrates that trust is not alien to Russia. She also traces this clear thread through the Soviet era by reference to the works of one of its leading intellectual lights in the civil-law field of that time. In the post-Soviet era, trust has already been explicitly introduced (in the first decade of the twenty-first century) into the legal space immediately bordering the Russian Federation: the new Ukrainian Civil Code. These historical digressions should help the reader appreciate more clearly the proposed 2010/2011 amendments to the Russian Civil Code. It is the view of the present author that these proposals pave the way for the recognition of the doctrine of trust in modern-day Russian law—augmenting the more limited nature of the institute of 'trust management' currently provided for under the Russian Civil Code.

Testimony Before the House Oversight Committee Concerning the AIG Trust

This written testimony accompanied Professor J.W. Verret's oral testimony before the House Committee on Oversight and Government Reform. This testimony outlines flaws in the Trust Agreement established by the Federal Reserve Bank of New York to manage the government's $180 Billion investment in AIG. Also testifying during the hearing were Ed Liddy, the CEO of AIG, and the three trustees nominated by the Federal Reserve to manage the Trust.

A Restudy on the Effect of Nominal Trust Agreement and on the Restitution of Nominal Entrusted Properties

A Restudy on the Effect of Nominal Trust Agreement and on the Restitution of Nominal Entrusted Properties

A Wel(l)come development: research funders and open access

ABSTRACTThis paper discusses the implications of the Wellcome Trust agreement with Blackwell, OUP, and Springer in which authors of accepted papers are able to pay an open‐access publication charge to make their article freely available online. In bringing together flexible licence terms and clear funding streams, the agreement has the potential to be used as a way of migrating towards possible new business models for journal publishing. It also has the potential, if implemented more widely, to deliver greater open access in such a way as to work in the interests of a broad range of stakeholders.

Mexico's Attempt to Reform the Guaranty Trust Agreement and to Create the Floating Lien Pledge

Mexico's Attempt to Reform the Guaranty Trust Agreement and to Create the Floating Lien Pledge

Variation of a Trust Agreement

Variation of a Trust Agreement lic. iur. Patrick Schürmann, LL.M lic. iur. Patrick Schürmann, LL.M Dr. Dr. Batliner & PartnerAeulestrasse 74, P O Box 86, 9490 Vaduz, Principality of Liechtenstein, Tel: +423 236 0404, Fax: +423 236 0405 Search for other works by this author on: Oxford Academic Google Scholar Trusts & Trustees, Volume 5, Issue 8, July 1999, Pages 11–14, https://doi.org/10.1093/tandt/5.8.11 Published: 01 July 1999

Commentary on “Engineers Who Kill - Professional Ethics and the Paramountcy of Public Safety”

Professor Kipnis' basic proposition is that we rely the work that engineers have done, entrusting our lives to the products of their special skills. Hence, the engineers must be alerted to such responsibilities as may be created by the public's reliance. Put simply: To rely on another is to impose responsibility on another. The law speaks in terms of A changing position or acting in some way in reliance upon representation by B. If A is induced to act to his or her detriment, in whole or part by such representation, B may be liable for any resulting injury to person or property. To continue the analogy, the questions that arise are many. What rights and duties, if any, run between A and B? Has some event intervened to change this relationship? Is B's obligation or duty modified as a result? It is crucial to identify the between A and B. What is the link between professional (special) skills and identifying the engineer with a product, or its user? We have little trouble making the connection between patient, appendix and physician; or, client, trust agreement, and lawyer. The reason is apparent, I think. There are few, if any, intervening events or causes that may modify the intended result. The concept of strict liability as it has evolved in the area of product use?cars, packaged goods and the like?by the public-at-large, can be said to reflect the fact that the consumer-user really does not know who is responsible, for defects, dangers, or who he or she is dealing with. The recent disaster in a Kansas City hotel, any plane crash, malfunctioning word processing equipment, or lemon of a lawnmover span the range of public outrage and displeasure with engineers, manufacturers and the vendor/service link in the chain. Where is the fault?in the design, the manufacture, service, or operation by the user? The IEEE Code of Ethics requires that its members advise their clients or employers of the likely consequences of matters of which they have knowledge. The thrust is anticipatory in nature, not suggesting that their responsibility is to ascribe blame before or after the event prompting public outcries. Engineers, in my judgment, lack a specific identity that links them to the public and its perception of the magic of electronics, the miracles of construction, speed of

Management of character disorders in a hospital setting.

Management of the character disorders in a hospital is synonymous with the therapeutic process itself. No single mode of therapy is the answer. The key seems to be a structured social setting, a therapeutic milieu involving an interdisciplinary team approach in which harmony, mutual trust and relative agreement about patient goals prevail.

The Role of the Farm Foundation in Agricultural Economics

5W 5 HEN I first joined the staff of the Farm Foundation, I spent considerable time attending meetings and conferences. One day one of the individuals that I had seen at many of these conferences said to me, Every place I go I see you. What is your racket, Joe? It happened that Henry C. Taylor, who was managing director at that time, was standing next to me, and before I had time to gather my thoughts for a proper reply, he said, Oh, he has the same function that yeast has in bread. I have often thought of that remark, and after almost thirty years, I can hardly think of a more apt reply. Farm Foundation is, indeed, much like a leavening agent, for one of its avowed aims is to start action that is self-sustaining and self-multiplying. principal founder of the Farm Foundation was Alexander Legge, who was president of the International Harvester Company at the time of his death. At one time he served as chairman of the Farm Board, and this gave him an excellent opportunity to talk with many farmers, businessmen, statesmen, and educators regarding his pet project, a fund that could be used to improve rural life. No agency existed for this specific purpose at the time, and he persuaded others to join with him in sponsoring a foundation. Frank 0. Lowden, another founder, showed his belief in the usefulness of such a foundation by a bequest in his will accompanied by these words: The quantity and the quality of the rural population is a major and most important factor in determining in the long run the strength, the character, and the well-being of the people of the nation. trust agreement which established the Farm Foundation in 1933 provides for the direction of its activities by a Board of Trustees of not fewer than 21 members. For purposes of insuring sound and effective management based upon broad information, seven of these Trustees are to be chosen at large; five are to be experienced in farming; three are to be selected from the executive, teaching, experimental, or extension staffs of the state universities maintaining agricultural departments; and the re-

Construction of a Retirement Fund Portfolio

Although the basic objectives of each of these funds are similar, and all enjoy a tax exempt status, they do present somewhat different problems of portfolio construction. This is due to the varying degrees to which the investments of the fund are controlled by legal or other restrictions. At one extreme, for example, the vast majority of state and municipal funds have very definite limitations on common stock investment, while, at the other extreme, the typical corporate profit sharing fund has no restrictions at all. Union-management funds, being of a quasi-public nature, generally have some restrictions contained in the trust agreement, while in the case of corporate pension funds this is the exception rather than the rule. In order to make a thorough examination of the factors which should be considered in the construction of a retirement fund portfolio, it is necessary to assume that the investment manager has complete freedom in the choice of investments. Therefore, most of the comments on overall policy matters relate to funds where there is full investment discretion, i.e., corporate pension and profit sharing funds. Of course, once the basic policy governing the major types of investment to be included in the portfolio has been determined, the factors to be considered in the selection of individual issues are common to all types of funds. Account must, however, be taken of specific restrictions which may be imposed, such as a minimum quality rating for bonds, and earnings and dividend requirements for common stocks.

Australia, Trusteeship and New Guinea

T HE AUSTRALIAN GOVERNMENT is faced with a dilemma in New Guinea. Trusteeship, under the United Nations, has become outdated and equated by some with colonialism. However, political instability in the region to the north, together with the recent Indonesian take-over of the western half of the island, inhibits the Australian Government in disengaging from an adjacent territory whose present capacity for complete self-rule is doubtful. Yet, to move more slowly than the emerging political forces in New Guinea will not only antagonise the anti-colonial bloc, and even Australia's friends, but is likely to jeopardise the future relationship between Australia and the nation whose eventual existence has now been somewhat reluctantly recognised. Australia has been involved in New Guinea since the latter part of the nineteenth century, but its present jurisdiction in the territory derives, for the southeast portion (Papua), from the British transfer of authority in i906 and for the northeast portion, first, from the Mandate granted by the League of Nations in i919, and subsequently from the trust agreement negotiated with the General Assembly of the United Nations in I946. Apart from an initial desire to deny the territory to an unfriendly power-an intention which reappeared at the time of the granting of the Mandate-New Guinea aroused little attention within Australia before I942.1 However, in that year indifference was shattered by the Japanese invasion. Vague and undefined fears, associated traditionally with an Asian threat, now crystallised and New Guinea was depicted as a springboard for enemy violation of the Australian mainland. Following the Second World War this image of the possible role of New Guinea significantly influenced governmental and public attitudes to the territory. For the Labor Government, which had held office since I94I, this resulted in an attempt to square security considerations with a traditional outlook on colonialism; for the Liberal-Country Party Government, which has been continuously in office since i949, it has meant, at least in its early years, a far less ambivalent approach. The Australian Government's position on trusteeship at the San Francisco Conference on International Organization can best be described as equivocal. Posing as the defender of the rights of small nations, espousing proposals for

Corporations: Shareholders: Effect on Voting Trust Agreement of Inability to Transfer Shares to the Voting Trustees

Corporations: Shareholders: Effect on Voting Trust Agreement of Inability to Transfer Shares to the Voting Trustees

THE HEED OPHTHALMIC FOUNDATION Report of Activities from Inception in May 1946 Until October 1950

To the Editor: —The Heed Ophthalmic Foundation was conceived by Mr. Thomas D. Heed, of Chicago, and his wife, Ruth Heed, in an effort to give additional opportunities for surgical experience and study to young ophthalmologists of exceptional ability. They felt that frequently the contribution that such men might be able to make to the advancement of the science of ophthalmology was lost, either through the pressure of finances or from the lack of entree to the best institutions of the nation. It was their belief that many deserving young men who had married or incurred other obligations on the completion of the usual curriculum, though such actions were eminently proper and right, were thereby forced to abandon their studies prematurely for the more lucrative field of clinical ophthalmology. Therefore, after consultation with leading ophthalmologists from various parts of the country, a trust agreement was drawn up, and five directors

American Chemical Society News

The first two trust companies consulted advised that in their opinion the difficulties could be met by a proper form of Trust Agreement under which the SOCIETY could be the beneficiary of the income but kept free of all responsibilities of ownership or control. The Trust Company would necessarily have to be paid for its services and responsibilities out of the income from the property, but the fees are moderate and, we were advised, under satisfactory legal protection. An exploration of these possibilities indicated that they could be worked out to the satisfaction of all parties. I requested the board members of the AMERICAN CHEMICAL SOCIETY to grant power to act to the committee on this changed proposal which they did. Elisha Hanson, as our Counsel, reviewed the proposed contract between the donors and the trust company and gave it his approval. I then placed copies in the hands of members of the committee who ...

Reference in a Will to a Trust Agreement

Reference in a Will to a Trust Agreement