신탁과 등기의 연구

Abstract

Real property has been considered such important part of trust estate that it should be registered to become valid trust estate as trust realty asset. In South Korea, however, the studies on trust laws and registration have not been conducted vigorously. Technically, in case of registering a trust instrument (‘deed’) to place real property into the trust, there are two parts of the registration: title transfer registration; and trust realty registration. According to current Real Estate Registration Act, it is mandatory that the registration filed for the trust asset before should be canceled if the asset, as a whole or a part, is to be conveyed from the trust estate. However, as a practical matter, it is not clear whether a separate cancellation of trust realty registration should be filed or not if a claim is filed for enforcing a transfer registration of real property ownership. As an effort of settling this matter, I explores and examines such problem in the following order. Firstly, I introduces various types of trusts since trust registration is comparatively new field of law in South Korea. It is evident that the original ownership can be obtained by the trust estate, not as the trustee's individual property, whenever the original registration of conveyance of the real property to the trustee is completed. Secondly, I tries to make a precise definition of trust registration dividing three types of definition: the most broad one; broad one; and narrow one. Also, it is pointed out that the trust, which can be canceled, is the narrowly defined type of trust registration. Thirdly, I gives lots of examples from the real practice illustrating confusion in terms of the necessity of court's requiring a separate cancelation of trust registration. The survey shows us that courts have not required claimants-trustees to cancel the trust registrations in most cases. Fourthly, I am not confident that there is any significance in differentiating the cancelation of trust registration from the title transfer registration since the cancelation of trust registration is not caused by a separate claimant's (trustee's) intent and it does not constitute a separate lawsuit. Thus, I am highly recommending that a separate cancelation of trust registration is not necessary to be required. Finally, as related matters, I touch the issues such as how to show cause of registration related to trust, whether cancelling trust registration is really necessary and the registration of retrust.