不動産名義信託에 관한 硏究

부동산 명의신탁의 법적 개념과 관련 소송 실무를 분석했다.

This article is a systematic study on the Myoung-Eui Trust(this concept usually use the nominal trust, but exactlly the concept of that trust seems to the trust of a title deed, so we use the trust of korean-named) in legal practices. We can frequently notice the cases where the concept Myoung-Eui trust in litigation related with real estae is used and use of such concept constitutes the important issue in such litigation. The Myoung-Eui trust is composed of numberous precedents of the Supreme Court which have been accumulated. And such precedents appear to form a complete system. It may be translated into English as name trust or trust of a title deed.

As the Myoung-Eui trust in made up the precedents, it has been a lot of theoretical and practical matters, namely it has not been systematically arranged. But the Myoung-Eui is used widely and frequently in our lagal life. The Korean Superme Count has established a special theory on the third kind of trust, which is unknown to other countries, through its sections. This new kind of trust is named by the Supreme Court as the trust of a title deed, Which may be translated into English as name trust.

According to the Supreme Court decisions the Myoung-Eui Trust or name trust is such a that, though a truster transfers his immoval to a trustee and trustee be registered as on owner in the public register, in the internal relations between the parties the trustor retains the ownership of the entrusted immovable and maintains or avails the perty, but in the external relations against the third party the transfer of the engarded as perfect. In many cases this Myoung-Eui Trust has been abused to conceal one's property or to evade paying taxes.

A Myoung-Eui Trust theory formed indiridual precedents so it cause many problem it has inconsistence and in sufficient ganeral systematical theory system in addition it taking a serious view of form and used it simple nominal debt and credit. A Myoung-Eui Trust used many field unfortunetly somebody abuse this system so people asked abolish this system. But it has been used scores of years and then lots people used that variety field.

So, The korean government really want to the leal practices, all landowners will be required to register their properties in their own names from July 1995 as the government is moving to nullify the over eighty years 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 remarkable 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 in 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 owner's will be punished lightly under provisions of old acts rather than the stern new bill. A large number of people has 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 high-rate donation taxes o capital gains taxes will be levied on those who have many attempt to take advantage of the new system by taking proper transactions as the change of owner's 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 his or her righ to property just by changing the registered name by the deadline. It is 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 truste