WU Ying-Chieh, Justifying the Asset-Partitioning Effect of the Trust - PART I: The Conventional Grounds Revisited – (2026)
<Abstract>
This article attempts to find the theoretical basis for the asset-partitioning effect of the trust in South Korea. It does this through two steps: (1) revisiting the conventional grounds regarding the asset-partitioning effect of the trust, and (2) suggesting alternative doctrinal grounds that could justify the effect. This work is divided into two parts, viz., PART I and PART II. PART I aims to explore issue (1), and PART II will delve into issue (2). However, for reasons of space, this article focuses on PART I. PART II will be examined in a separate paper. In this article, two themes were discussed: one was the likelihood that the concept of separate patrimony has a Roman origin; the other was the plausibility of regarding the trust fund as a separate patrimony having a de facto legal personality. The argument for the concept of separate patrimony and the attempt to locate it in Roman law were both found wanting. For example, separate patrimony cannot be found in the Roman concepts of dos and peculium since it was clearly the proprietary rights conferred on the wife and the slave that protected the dos and peculium; not any concept of separate patrimony. And the trust fund cannot be regarded as functioning as a de facto legal person, for neither the provisions of the Trust Act mentioned by Professor Shinomiya nor the arguments put forward by Dr Lepaulle and Professor Gretton provide us with the confidence to accord legal personality, or anything like it, to the trust fund. One further problem is that the concept of separate patrimony conflicts with certain basic rules of trusts: for example, a person cannot hold a liability on trust for another, yet it should be possible for a liability to fall into a separate patrimony. In conclusion, neither the historical nor the modern interpretations of the concept of separate patrimony and the de facto legal personality approach mentioned both in Japan and in some civilian and mixed jurisdictions provide Korean trust law with convincing theoretical grounds for the asset-partitioning effect.
<Keywords>
Trust, legal personality, separate patrimony, Roman law, dos, peculium, Sondervermögen, Zweckvermögen
WU Ying-Chieh, Justifying the Asset-Partitioning Effect of the Trust - PART I: The Conventional Grounds Revisited – (2026)
<Abstract>
This article attempts to find the theoretical basis for the asset-partitioning effect of the trust in South Korea. It does this through two steps: (1) revisiting the conventional grounds regarding the asset-partitioning effect of the trust, and (2) suggesting alternative doctrinal grounds that could justify the effect. This work is divided into two parts, viz., PART I and PART II. PART I aims to explore issue (1), and PART II will delve into issue (2). However, for reasons of space, this article focuses on PART I. PART II will be examined in a separate paper. In this article, two themes were discussed: one was the likelihood that the concept of separate patrimony has a Roman origin; the other was the plausibility of regarding the trust fund as a separate patrimony having a de facto legal personality. The argument for the concept of separate patrimony and the attempt to locate it in Roman law were both found wanting. For example, separate patrimony cannot be found in the Roman concepts of dos and peculium since it was clearly the proprietary rights conferred on the wife and the slave that protected the dos and peculium; not any concept of separate patrimony. And the trust fund cannot be regarded as functioning as a de facto legal person, for neither the provisions of the Trust Act mentioned by Professor Shinomiya nor the arguments put forward by Dr Lepaulle and Professor Gretton provide us with the confidence to accord legal personality, or anything like it, to the trust fund. One further problem is that the concept of separate patrimony conflicts with certain basic rules of trusts: for example, a person cannot hold a liability on trust for another, yet it should be possible for a liability to fall into a separate patrimony. In conclusion, neither the historical nor the modern interpretations of the concept of separate patrimony and the de facto legal personality approach mentioned both in Japan and in some civilian and mixed jurisdictions provide Korean trust law with convincing theoretical grounds for the asset-partitioning effect.
<Keywords>
Trust, legal personality, separate patrimony, Roman law, dos, peculium, Sondervermögen, Zweckvermögen