부동산 명의신탁

부동산 명의신탁의 법적 구조와 소유관계를 연구했다.

This thesis is a study on the "Nominal Trust" of real estate. According to usual precedent of the Supreme Court, the Nominal Trust refers to "Trustee's name is registered and trustee is regarded as owner externally(relation between trustee and a third party), but trustor has ownership interiorly(relation between trustor and trustee).". (Some scholars call such special case "Relative Transfer of Ownership".) Usually, the Nominal Trust is understood that did origin in precedents of the Chosun High Court. About the dispute connected with the families of the same clan’s real estate, the Chosun High Court recognized that the families of the same clan entrusts the name to own constituent.

(Many scholars understand that it is as result that the Chosun High Court applied the Trust Theory that had been introduced in Japan jurisprudence.) Also, since the restoration of independence, the Nominal Trust settled to firm Precedent Theory by result that the Supreme Court had accommodated this attitude. (Therefore, the Nominal Trust is our country's unique law system that is established and developed by precedents.) So, the Nominal Trust has been utilized concern to individual's real estate as well as the families of the same clan's real estate being based on this Precedent Theory, but this system has been abused in the evasion of the legal regulation frequently.

For example, the Nominal Trust has been used by means of tax evasion(through the concealment of a responsible property), escaping of compulsory execution, escaping of various regulation about real estate. And it has been used in a speculation in real estate through these method. So, the government introduced various regulations to prevent these behaviors. First, "Old Inheritance Tax Act" had kept regulation that regarded the Nominal Trust as donation, but it lost its function because of the Constitutional Court's decision. Because the decision declared that this regulation conflicted with the constitution.

Another measure was the enactment of "Special Measures for the Registration of Real Estate Act", and it prohibited the Nominal Trust of unlawfulness purpose, nevertheless, judged that the Supreme Court is valid still the Nominal Trust that violate to this regulation. So, those actions could not prevent the abuse of the Nominal Trust. Finally, the government need the Act that directly prescribe the Nominal Trust's effect avoidably, it is "Real Estate-Real Name Registration Act(1995. 3. 30. The Act No.4944)" justly that meets in this necessity.

That is, "Real Estate-Real Name Registration Act" stipulates that the contract by the Nominal Trust is paralyzed and the transfer of the real right about real estate is invalid, too. But, the real right transfer about real estate may not be abated in case the trustee is one of the parties to the contract to acquire the real estate and the other party(original owner of real estate) doesn't know the fact that there exists the Nominal Trust. In addition, in case the third party is intervened in the Nominal Trust's legal relation, the real right transfer about real estate may not be abated.

On the one hand, this act recognizes valid case exceptionally about the Nominal Trust for the families of the same clan's real estate or the life partner's real estate. By the way, the problem is that this act prescribes only recapitulative parts of the Nominal Trust, and does not keep regulation about detailed legal relations. The main purpose of this thesis is examining particularly what legal relation exists concretely among the interested parties of the Nominal Trust. So, after dividing the Nominal Trust's legal relation by valid case and invalid case, I tried to examine closely each specific legal relation in this thesis.

But, I feel that the discussion is lacking yet in spite of these effort, and think that more precedents are accumulated forward and researches may have to be continued. So, we must reduce the confusion about the Nominal Trust's legal relation through the enactment of more specific and more definite act based on such researches finally.