名義信託의 效力에 관한 硏究

부동산 명의신탁의 법적 효력과 관련 쟁점을 연구했다.

This article is about systematic study on the Nonimal Trust. We can often notice the cases where the concept Nominal Trust in litigation is relate to real estate that is used and use of such concept constitutes of the important issue in such litigation. 'Nominal Trust' can be traced back to the Japanese Imperialism after the Japanese Annexation of Korea, when Chosun Central Information Committee, conducting the examination of Korean lands and forests, allowed one or more men of the family under the same clan to be registered for the examiner's convenience.

This theory was designed for the same-clan-families which can not be independently incorporated under their own name to report their property and be examined by the Committee. This theory had been established by the judicial cases from a part of the trusting acts under the Civil Law without any statutory basis. This theory is a unique legal system to Korea, not existing under other countries' legal system. However, since it has been made possible to register under the same-clan-families' name under the current legal system, the original value of its initial object has decently become bleached out.

Rather, in the meantime, it has been on the public criticism because it could have been abused as the law-evading ways to avoid the judgment execution, taxation, or other regulations. Consequently, "the Act on the Registration under the Actual Titleholder's Name" was enacted and has been enforced, where the transfer of the ownership to the real property under the nominal trust agreement can be denied by making the agreement null and void. Furthermore, the Act prohibits the registration under the trustee's name and recommends the existing nominal trustors to restore their registry ownership under their own name.

This Act expressly provides that the nominal trust is void to prevent the antisocial acts abusing the register system, while it still provides exceptional situations for the same-clan-family and the spouse. In addition, it provides the ex post facto regulation alone, without containing fundamental measures to prevent or eradicate the abusing of the nominal trust. Therefore, I suggest that we could solve these various problems by clarifying the provision, which provides "Any change in the real rights to any real estate by a registration made under the nominal trust agreement shall be null and void". Additionally, Special Case for the same-clan-families and the Spouse should be removed.

Secondly, in order to solve the problem that the substance of real estate transactions differs from the name, it is indispensable to improve the real estate registration system rationally.