부동산명의신탁과 공정증서원본부실기재죄의 성부

명의신탁 부동산 등기의 공정증서원본부실기재죄 성립을 검토했다.

In determining whether a case falls within the crime of falsification of the original of an authentic instrument, the prevailing academic view and the consistent jurisprudence of the Supreme Court of Korea have adopted the criterion of civil validity or invalidity—including the existence or nonexistence—of the matter recorded in the public document. The same standard should logically apply to title registrations of real estate held under nominal trust arrangements.

Prior to the enforcement of the Act on the Registration of Real Estate under Actual Owner’s Name (“Real Name Real Estate Act”), the Supreme Court had denied the applicability of the crime of falsification of the original of an authentic instrument to nominal trust registrations on the premise that real estate title trust agreements were civilly valid. However, following the enactment of the Real Name Real Estate Act, which renders both the nominal trust agreement and any registration made pursuant thereto null and void, an important question arises as to whether the Court’s pre-existing position—based on the civil validity of the underlying trust—can remain tenable.

Despite this statutory change, the Supreme Court has continued to deny the establishment of the crime in cases involving nominal trust registrations(See Supreme Court Decision 98Do593, Apr. 28, 1998).

Nevertheless, given that the Real Name Real Estate Act fundamentally invalidates nominal trust agreements and the resultant transfers of property rights, and considering further that a nominal trust in real estate may be characterized as both a fictitious legal transaction and an act contrary to public policy, it appears more persuasive to recognize the establishment of the crime of falsification of the original of an authentic instrument in such cases—except in certain limited circumstances explicitly recognized as valid by the statute, such as contractual nominal trusts involving bona fide sellers, nominal trusts between spouses.

Accordingly, the principle of criminal liability should be affirmed in respect of most nominal trust registrations of real estate under the current legal regime.