부동산실명법의 문제점 및 개정방향 = Problems and direction of revision for real name property ownership law

부동산실명법의 명의신탁 규정과 실명등기 방향을 연구했다.

Title under a third party's name is a very peculiar theory which could be seen in Korea only and it had has been recognized for a long time as judicial precedents in Korea. Originally it started from the time of Japanese Rule in the process of introducing system for land registration in our country after annexation of Korea by Japan. They found no proper regulation for registration land and forest owned by families of the same clan under the name of such families in Ordinance for Registration of Real Estate in Chosun at that time.

Accordingly left with no choice they allowed to register lands owned by families of same clan in the name of representatives of such families or to register after receiving survey under the name of a member of such families. Since then need of title under a third party's name theory disappeared as a result of law revision. But judicial precedents did not abrogate theory of title under a third party's name but recognized such theory extensively and expanded scope of its application broadly.

However in such process title under a third party's name gradually deviated from its role of supplementing deficiency of laws and orders but it has been abused as means of distorting relationship of right and used as tools for carrying out anti-social and illegal actions like speculation, tax-evasion and irregular actions and its problem became very serious. Accordingly the government recognizing above mentioned situation enacted Real Name Property Ownership Law (hereinafter to be referred to as Real Name Property Ownership Law) which declared judicial invalidity of title under a third party's name in 1995.

Such law invalidated theory of title under a third party's name which had been criticized continuously for logical flaw on the law meanwhile. The major purpose of new law was to establish sound economic justice through normal transaction of real estate by prohibiting speculation, tax-evasion and irregular actions by means of legal theory of title under a third party's name.

Despite such intention of the Law of Real Name for Real Estate at the time of its enactment it was formulated without detailed analysis and sufficient examination of the theory of title under a third party's name with complicated theory at the time of its enactment thus core provisions of Law of Real Name for Real Estate contain many problems such as legal relationship of title under a third party's name and legal effect due to its invalidity etc. Accordingly purpose of this study is to review contents of Real Name Property Ownership Law and problems in its legal provisions and to propose direction to be taken by the Law in Future.

Therefore in this study the scope of study was limited to civil law aspect only and after reviewing problems on the basis of provisions direction for improvement will be proposed. Method of study is as follows: In Chapter 2 contents of Real Name Property Ownership Law are examined by each provision. In review of each provision opinion from different sectors in the society at the time of its enactment will be reviewed concurrently. The contents of Real Name Property Ownership Law to be examined are mainly legal relationship pursuant to title under a third party's name which is core logic in Real Name Property Ownership Law.

Additionally provisions related to tax and provisions which do not contain problems and provisions having no room for disputes for its simplicity and clarity are excludedBesides above only simple explanation is given for other contents of Real Name Property Ownership Law. In Chapter 3 legal problems revealed with Real Name Property Ownership Law are examined. And more specific direction for revision of Real Name Property Ownership Law is suggested by arranging and reviewing important judicial precedents related to the Law because it is necessary to revise important contents of the Law with provisions in future which had been put off as task to be tackled by judicial precedents.

In Chapter 4 by summarizing above mentioned contents of Chapter 2 and 3 direction for revision of Real Name Property Ownership Law to be taken in future was summed upon the basis of each provision. In Chapter 5 problems of Real Name Property Ownership Law and direction for its revision were examined finally and in order to maximize functions of the Law tasks to be supplemented in future are summarized.

제 1 장 서론 = 1 제1절 연구의 목적 = 1 제2절 연구의 범위 및 방법 = 2 제 2 장 부동산실명법의 내용 = 4 제1절 명의신탁약정의 개념 = 4 Ⅰ. 명의신탁약정의 당사자 = 4 Ⅱ. 명의신탁약정의 대상 = 5 1. 부동산 = 5 2. 소유권 기타 물권 = 6 Ⅲ. 명의신탁약정의 내용 = 7 Ⅳ. 명의신탁약정의 형식 = 7 제2절 명의신탁약정의 유형 = 9 Ⅰ. 2자간 등기명의신탁 = 9 Ⅱ. 3자간 등기명의신탁(중간생략명의신탁) = 9 Ⅲ. 계약명의신탁 = 10 제3절 명의신탁약정 비적용 유형 = 10 제4절 명의신탁약정의 효력 = 11 Ⅰ. 총설 = 11 1. 부동산실명법 제정당시 학설 = 11 2. 명의신탁약정의 효력 = 15 Ⅱ. 명의신탁 유형에 따른 물권변동의 효력 = 17 1. 2자간 등기명의신탁 = 17 2. 3자간 등기명의신탁 = 20 3. 계약명의신탁 = 22 Ⅲ. 제3자에 대한 명의신탁의 효력 = 28 1. 제3자의 범위 = 28 2. 악의의 제3자 포함 여부 = 29 3. "대항하지 못한다"의 개념 = 30 Ⅳ. 수탁자의 처분행위와 법률관계 = 31 1. 2자간 등기명의신탁 = 31 2. 3자간 등기명의신탁 = 31 3. 계약명의신탁 = 34 4. 수탁자의 처분행위와 횡령죄 = 35 제5절 기존 명의신탁등기의 실명등기의무 = 38 Ⅰ. 내용 = 38 Ⅱ. 실명등기의무 위반의 효력 = 38 1. 제1설 = 39 2. 제2설 = 39 3. 제3설 = 39 4. 제2설의 채택 = 39 제6절 명의신탁의 특례(무효에 대한 예외)인정 = 40 Ⅰ. 종중의 명의신탁 = 40 Ⅱ. 부부간의