不動産實名制下에서의 名義信託과 刑事責任에 관한 硏究

부동산실명제하 명의신탁의 법적 성격과 형사책임을 연구했다.

It have been seven years that the Act on Real Name Registration of Real Estate was introduced to Korea. Name trusting in registration of real estate had been admitted by judicial precedent and convention without any provision in the law, and it ensures that the truster officially keeps the right of ownership and using practical right in the internal relation between title truster and title trustee. Under this system, name trusting in registration of real estate had been misused for the wrong purpose in many cases. That is why the Act on Real Name Registration of Real Estate was enacted on 1 July 1997.

The Act prohibits name trusting and provides that any real estate should be registered in the real owner's name, which has the purpose of the prevention of anti social activities such as like speculation, tax evasion, violation of laws, and etc. and the establishment of sound national economy through the normalization of real estate transactions and real estate price stabilization. It is the biggest reform and change in Korean legislation that the new Act invalidated title trust agreement and transfer of rights on real estate by name trusting which had been validated for a long time, and that it provided the punishment in violation.

After seven years from the enactment, however, it has been considered that there have been some insufficiency in the light of the purpose of this law. Because name trusting is not rooted out and still misused for the violation of law, tax evasion. It seems to affect social problems such as the sharp rise in price of real estate. Judicial precedents of the Supreme Court varies on criminal responsibility when title trustee voluntarily disposed the real estate according to the type of name trusting.

First, in case of name trusting between two persons, title trust agreement is invalid between title truster and title trustee, and registration of ownership transfer given to title trustee is also invalid. As the result, since the right of ownership of real estate remains to truster, the title trustee is guilty of embezzlement to the title truster when the title trustee disposed real estate and made some profit on the property.

Second, in case of name trusting among three persons, title trust agreement is invalid between title truster and title trustee and transfer of real right's according to that title trust agreement is also invalid, so the ownership of real estate comes back to the seller, original owner. In that case, truster on the behalf of the seller can use the right of return claim of real estate to trustee. Therefore, when the trustee disposed the truster's real estate and made some profit of the property, he is guilty of embezzlement to title truster.

Third, in case of the contract of name trusting, when the original owner, the seller, knew that the contract is title trust agreement, then the contract is invalid because the trust relation did not exist from the first time, so breach of trust or embezzlement doesn't take place. Forth, in case of the contract of name trusting, when the original owner, the seller, did not know that the contract is title trust agreement, as the ownership transfer registration is valid and title trustee gained the right of ownership of real estate validly, its not embezzlement that title trustee disposes name trusting real estate and made some profit from it.

As name trusting is often improperly used for speculation and tax evasion, it obstructs the stabilization of price of real estate and helps the property concealment by the public official and high level persons. According to the purpose of the Act, for the prohibition of name trust and stabilization of real name registration, the right of ownership of name trust property should be considered as trustee's name, and the problem about loss of truster's property should be brought to the Civil Court. When the related law is revised and punishment is stricter to crimes relating to the name trust, name trust will be disappeared.

Special exception of the Act for the families of the same clan and spouse should be exterminated for the prevention of the possible misuses, and other exceptions such as existing security right for transfer needs to be exterminated or supplemented. It is recommended that the real estate registry is given the public confidence and related public officials are also bestowed the right of practical inspection on false and unreliable registration, for the purpose of the conduction and settlement of the registry of real right claimants name.

목차 第1章 序論 = 1 第1節 硏究의 背景 및 目的 = 1 第2節 硏究의 範圍 및 方法 = 4 第2章 各國의 不動産登記制度 = 6 第1節 大陸法系의 登記制度 = 6 1. 獨逸의 登記制度 = 6 2. 瑞西의 登記制度 = 9 3. 佛蘭西의 登記制度 = 10 4. 日本의 登記制度 = 11 第2節 英美法系의 登記制度 = 12 1. 美國의 登記制度 = 12 가.「레코딩」시스템(Recording system) = 13 나.「토오렌스」시스템(Torrens system) = 14 (1) 最初의 登記 = 15 (2) 最初 登記後의 物權變動 = 15 (3) 國家賠償制度 = 16 2. 英國의 登記制度 = 16 第3節 우리나라의 登記制度 = 17 1. 不動産登記制度의 發達過程 = 17 가. 第1期 - 立案制度 = 17 나. 第2期 - 地契·家契制度 = 19 (1) 家契制度 = 19 (2) 地契制度 = 20 다. 第3期 - 土地家屋證明制度 = 20 라. 第4期 - 日本制度依用 = 21 2. 現行 不動産登記制度의 特徵 = 23 가. 物的編成主義 = 23 나. 共同申請主義 = 24 다. 形式的審査主義 = 24 라. 成立要件主義 = 25 마. 公信力의 否認 = 26 바. 國家賠償責任主義 = 27 3. 現行 不動産登記制度의 問題點 및 登記實名化 方案 = 28 가. 不動産登記制度의 問題點 = 28 (1) 不動産 登記簿의 公信力 不認定 = 29 (2) 登記公務員의 形式的 審査節次 = 29 (3) 不動産 登記簿와 臺帳의 不一致 = 29 (4) 檢認契約制度上의 問題 = 30 (5) 特例 및 例外認定의 問題 = 32 나. 不動産登記實名化를 위한