『不動産實權利者名義登記에 關한 法律』의 硏究 = (A) Study on the Legal Problems of Nominal Registration of the Real Estate

부동산 실권리자 명의 등기 제도의 법적 문제를 연구했다.

All landowners will be reguired to register their properties in their own names from July 1,995 as the government is moving to nulify the over 8 decades-old custom of allowing borrowed-name registrations in an attempt to root out tax evasion and curb land speculation. The projected system is comparable to the present real-name financial transaction system though its impact on the national economy may not be as much extensive.

The first target of the new system is of course to stabilize land prices and curb speculation in real estate as there are signs that land prices will rise remarkably when a construction boom is expected along with increased money circulation due to forthcoming various conditions. The government enacted a similar law in 1990 that bans registration is other people's names for the purpose of evading taxes and other governmental regulations but it has since become a scrap of paper in the face of repeated precedents set by the Supreme Court which recognized trusteeship. Land already registered in other's by June 30, 1996.

A bill on real-name realty registration has been settled during the first quarter of the year 1995 by the National Assembly so the system could be started on July 1. One year would be given as a "rectification" period. Violators of the law will face grave punishment of up to five year's imprisonment plus fines of up to 30 percent of the value of their real estate Exceptions to the bill would be confined to registration of land owned by clan or extended family m the name of its representative and property in a creditor's name for redemption of debt in kind Religious bodies and some fraternal societies including alumni associations may be permitted to use their group names.

Tax evasion or other violations of the law which are found in the course of changing registered names into the real owners' will be punished lightly under provisions of old acts rather than the stern new bill. A large number of people have registered their apartments in other's names because the Housing Construction Promotion Law bans their sale within two years after they are first purchased from constructors at much lower prices than market prices. And hgh-rate donation taxes o capital gains taxes will be levied on those who many attempt to take advantage of the new system by taking proper transactions as the change of owners' names compelled by the new act.

As to emerging argument within a part of the business community that the prohibition of the use to borrowed names in land registration contradicts the "principle of free contracts." However, the bill has been scheduled to deprive persons of land registered under borrowed names. Anyone can recover hie or her righ to property Just by changing the registered name by the deadline.

It is a future-oriented measure not to impose heavy penalties on an action conducted in accordance with the old regime but it would place all land deals on a fair and open footing and stabilize land commodity prices Land price stability is a prerequisite to the enhanced competitiveness of local products and to globalization. property speculation has been cited as one of the most serious national diseases in Korea, the rapid economic development of which in the past three decades had sent land prices skyrocketing until only a few years ago Not a few difficulties are awaiting the government in bringing about such reform.

First, there will be strong resistance from the large land owners and bussinesses. Already there are voices claiming the unconstitutionality of such ban in view of individuals' rights for making economic contracts freely There will also arise a number of suits between the trusters and trustees over actual ownership of property once the government bans such trusteeship. The biggest problem in establishing real name estate ownership is, ironically, the legal precedents which have recognized the use of borrowed named in land deals under the principle of the freedom of contracts A special legislation in thus required to put an end to the widespread practice of registration in borrowed names.

In this regard, the government needs to prevent any dispute about constitutionality in pushing for the reform. The government's proposed heavy taxation on excessive possession of land has all but been nullified because of the Constitutional Court's ruling that such a move violates individuals' property rights To arrive at the final goal of realizing economic justice in the country, it is imperative that underground money and hidden land are thoroughly exposed.

The ban, when combined with the nationwide computerization of land ownership by individuals and families which has just been completed by the Ministry of Construction and Transportation, is expected to root out property speculation in this country for the first time. This goal in commensurate with the adminstration's professed desire for reform and change. In this regard, the new economic steps, if properly Implemented, will have the unconditional support of the general public. The government should thoroughly review related laws and work out preventive devices to cushion the impact of the revolutionary measure rather than thrust it out to an unexpecting public.

목차 = ⅰ ABSTRACT = ⅰ Ⅰ. 序論 = 1 A. 硏究의 目的과 方法 = 1 1. 硏究의 目的 = 1 2. 硏究의 方法 = 3 B. 不動産政策과 不動産實名法의 立法 = 4 1. 不動産政策 槪觀 = 4 2. 不動産實名法의 立法 = 13 Ⅱ. 名義信託,그 理論과實際 = 16 A. 序說 = 16 B. 名義信託類似制度 = 18 1. 우리나라의 경우 = 18 2. 西歐의 경우 = 22 3. 信託法上의 信託 = 25 C. 名義信託의 生成과 外國의 名義信託制度 = 27 1. 土地調査事業과 名義信託 = 27 2. 外國의 名義信託制度 = 30 D. 名義信託의 成立 = 31 1. 名義信託 設定契約 = 31 2. 中間省略 名義信託에 대한 議論 = 36 E. 名義信託의 事例 = 40 1. 宗中財産의 경우 = 40 2. 賣買過程의 경우 = 43 3. 官廳에서의 拂下의 경우 = 47 4. 自動車(重機)의 경우 = 50 5. 競賣의 경우 = 52 6. 建築許可의 경우 = 53 7. 外國人의 土地取得의 경우 = 55 F. 名義信託의 法律關係 = 56 1. 對內的 法律關係 = 56 2. 對外的 法律關係 = 62 3. 名義信託의 解止 = 72 G. 名義信託의 弊害 = 80 1. 脫法手段으로 利用 = 81 2. 登記의 目的과 不附合 = 82 3. 惡意의 第3者 保護問題 = 82 H. 名義信託에 대한 規制 = 84 1. 相續稅法上의 贈與擬制에 의한 規制 = 84 2. 不動産登記特別措置法에 의한 規制 = 93 I. 名義信託制度의 展望 = 97 Ⅲ. 不動産實名法의 內容 = 99 A. 序說 = 99 1. 目的과 適用範圍 = 99 2. 規制되