KyeJoung Lee, The Opposability of the Real Estate Trust Registration and Proposals for Legal Revision(2025)
<Abstract>
This paper addressed the legal issues concerning the opposability of the trust registration in real estate, identified the problems in the current trust registration method, and evaluated the legitimacy of disclosing the information of the beneficiary who becomes entitled to the trust property after the death of the trustor in a will-substitute trust. Based on these analyses, the paper proposed revisions to the Real Estate Registration Act. This paper can be summarized as follows.
First, there is no statutory basis for recognizing the opposability of the trust ledger. Granting such opposability could lead to its misuse as a means for trustees to evade liability and would create uncertainty in defining the scope of the opposability. Accordingly, court decisions that upheld the opposability of the trust ledger under the former Trust Act are inappropriate, while a recent court decision that denied such opposability under the amended Trust Act is well-founded.
Second, under the current system, trust registration is carried out by appending a scanned copy of the trust agreement to the cover page of the trust ledger. This method transforms a privately drafted trust agreement into an official registration document, which contravenes the Real Estate Registration Act. Morveover, it treats the appended contract as part of the official registry, undermining the structural principles of Korea’s registration system and significantly impairing its function of public notice. As a corrective measure, I maintain that trust registration should instead be completed through a trust information form, prepared directly by the registrar and limited to essential information of the trust.
Third, in the case of will-substitute trusts, the current practice allows public access to the information of the beneficiary who becomes entitled to the trust property after the death of the trustor(hereinafter “the beneficiary”). Unlike a will, the disclosure of such information can be said to infringe upon the privacy of both the settlor and the beneficiary. Therefore, the Real Estate Registration Act should be revised to prevent public disclosure of beneficiary information.
<Keywords>
real estate trust registration, trust ledger, trust information form, opposability of the real estate trust registration, structural principles of korea’s registration system, will-substitute trust, beneficiary who becomes entitled to the trust property after the death of the trustor, privacy
KyeJoung Lee, The Opposability of the Real Estate Trust Registration and Proposals for Legal Revision(2025)
<Abstract>
This paper addressed the legal issues concerning the opposability of the trust registration in real estate, identified the problems in the current trust registration method, and evaluated the legitimacy of disclosing the information of the beneficiary who becomes entitled to the trust property after the death of the trustor in a will-substitute trust. Based on these analyses, the paper proposed revisions to the Real Estate Registration Act. This paper can be summarized as follows.
First, there is no statutory basis for recognizing the opposability of the trust ledger. Granting such opposability could lead to its misuse as a means for trustees to evade liability and would create uncertainty in defining the scope of the opposability. Accordingly, court decisions that upheld the opposability of the trust ledger under the former Trust Act are inappropriate, while a recent court decision that denied such opposability under the amended Trust Act is well-founded.
Second, under the current system, trust registration is carried out by appending a scanned copy of the trust agreement to the cover page of the trust ledger. This method transforms a privately drafted trust agreement into an official registration document, which contravenes the Real Estate Registration Act. Morveover, it treats the appended contract as part of the official registry, undermining the structural principles of Korea’s registration system and significantly impairing its function of public notice. As a corrective measure, I maintain that trust registration should instead be completed through a trust information form, prepared directly by the registrar and limited to essential information of the trust.
Third, in the case of will-substitute trusts, the current practice allows public access to the information of the beneficiary who becomes entitled to the trust property after the death of the trustor(hereinafter “the beneficiary”). Unlike a will, the disclosure of such information can be said to infringe upon the privacy of both the settlor and the beneficiary. Therefore, the Real Estate Registration Act should be revised to prevent public disclosure of beneficiary information.
<Keywords>
real estate trust registration, trust ledger, trust information form, opposability of the real estate trust registration, structural principles of korea’s registration system, will-substitute trust, beneficiary who becomes entitled to the trust property after the death of the trustor, privacy