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영국법상 신임관계에 관한 연구
- 영국법상 신임관계에 관한 연구
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- 대학원 법학과
- 이화여자대학교 대학원
- The Commercial Act with the corporation regards the relation between the company and the director as a delegate whereby the provisions relating to the delegate in Civil Law shall be applied the relation.(Commercial Act, art.382,sec.2) The majority views in Korea takes a view the director bears the duty of due care and diligence on the corporation attaching importance to this clause.
But new article 382-3, duties of directors to be faithful, is established in 1998. In article 382-3, directors shall perform their duties faithfully for the good of the company in accordance with the relevant acts, subordinate statues and the articles of incorporation. The minority views in Korea think the director`s duties in this article as fiduciary duty of the corporation on the basis of fiduciary relation in English legal system.
As a law student in continental legal system, I have respect to special features and characteristics of fiduciary principle in English legal system. The key issue is not the legal liabilities of director but the contents of fiduciary relationship and fiduciary duties in English equity. This treaties is made up of two parts. One part(chapter II, III) is a description of fiduciary relationship and the other(chapter IV) is contents of fiduciary duties.
In chapter II, I research about the historical development of the fiduciary relationship. The historical original forms of fiduciary relationship are fiducia and fideicommissum in Roman Law. And the word "fiduciary" is originated in fiduciarius. But exactly a trust in equity is the direct original form of fiduciary relationship. As trust in equity evolved, the rules about trust became fixed and precise. And there were many situations that were similar to these between trustee and cestui que trust but fell short of the strictly-defined trust. The word "fiduciary relationship" was adopted to describe these situations.
The fiduciary relationship embraces all trust-like situations including the trust itself and the rules and principles governing these relationship are the same as those of the law trusts. But the fiduciary relationship is not definitive of a single class of relationships to which a fixed set of rules and principles apply. Therefore a classification of fiduciary relationships is the proper way to understand the fiduciary principles.
Chapter III describes five categories of fiduciary relationship and some tests of judgement on fiduciary relationship. These categories may overlap and the decisive issue depends on the terms of the agreement between the parties. The question is whether this categorization can be produce a more specific formula about fiduciary relationship or a accurate definition of fiduciary relationship. Speaking the conclusion, it is impossible adequately to define a fiduciary relationship and fruitless to do so. However it is suggested that there are some tests of fiduciary relationship within the traditional categories of fiduciary relationship. The main tests created in the case law-the undertaking test and discretion test-are only identify the existence of the fiduciary relationship.
In chapter IV, I give an outline of fiduciary duties. The fiduciary relationship calls forth fiduciary duties to prevent abuse of the trust in the relationship. The fiduciary duties which may apply to a relationship vary with the nature of the fiduciary relationship. Such duties can be either prescriptive or proscriptive.
As the major proposition of fiduciary duties, the prescriptive duties are requiring the fiduciary to act generally in the beneficiary`s best interest. In proscriptive duties, as a matter of fiduciary`s loyalty, these duties compel the fiduciary to maintain certain standards. I recategorized them as the duty not to have a conflict of interest, the duty not to make an unauthorized profit, the duty of disclosure and the duty not to abuse confidential information.
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