신탁등기의 대항력에 관한 소고 －판례의 태도와 이에 대한 비판을 중심으로－

The trust system is being used for various purposes based on its flexibility. In particular, trusts for real estate are gradually increasing in Korea. The Trust Act stipulates that, by registering a trust, the property can be asserted as a trusted property against a third party. In practice, there is a dispute regarding the extent to which the assertiveness of trust registration should be recognized. This paper examines this issue through major court precedents. The trust system has a long-term history from English equity law, and is a highly heterogeneous concept in civil law, which understands ownership as an absolute right. The priority of trust registration has a direct impact on real estate trust transactions in the market, and also relates to how to understand the legal nature of trusts and how to incorporate the trust system into our real property law system. Based on the provisions related to the former Trust Act and the former Real Estate Registration Act, courts recognize the trust registration has a priority to a wide range of trust agreements attached to the trust ledger. This means that the trust agreement between the trustor and the trustee has a binding effect even to a third party. In some cases, of course, based on specific facts, such as the timing of trust registration, or through the interpretation of the parties’ intentions, or application of other laws, efforts were made to reach a reasonable conclusion. However, this attitude of the court cases is not in line with the purpose of trust registration and the interpretation of the Trust Act, and it results in acknowledging the creation of property rights only through the agreement of the parties, which is not valid. The purpose of trust registration is to recognize the independence of trust property in our legal system and to protect third parties in this regard. It is not to recognize the general effect of the trust agreement itself. The Trust Act only stipulates that trust property can be asserted against a third party through trust registration. The Real Estate Registration Act, which stipulates the procedure, cannot be used as a basis for recognizing the general effect. While there are civil law countries that have trust registration, but it is difficult to find an example that extends the range of priority power to the contents of a trust agreement. In addition, if the legal effect of trust registration is too broadly acknowledged as in the court cases, those who wish to transact on the trusted property would have to separately access the trust register, examine the trust contract attached to it, and further analyze its legal effects. It would create legal uncertainty and hinder transactions involving trust properties. Therefore, it is simple and desirable for transaction safety to say that the effect of trust registration only extends to the fact that the relevant real estate belongs to the trust property, and that other trust-related matters cannot be asserted against third parties. Judicial precedents so far have been based on the provisions of the former Trust Act, but applying the current Article 4 of the Trust Act can lead to the interpretation of the law clearer in the future.