부동산 명의신탁에 관한 민,형법의 통합적 연구

부동산 명의신탁 관련 법률관계를 민·형법 관점에서 통합 연구한다.

Nowadays, in accordance with complication and specialization of our social life are special acts which regulate each peculiar sphere of life enacted. Among those special acts a plenty of numbers contains the relevant regulations concerning public law, civil law and criminal law. “The Act on the Registration of Real Estate under Actual Titleholder’s Name” can be taken as an instance. So, in interpreting the regulations of this Act, the integrated approach mobilizing to the various legal points of view as well as civil law and criminal law is greatly needed. This theses deals with only the case that a title trustee has disposed the real estate trusted to him to a third party.

In this theses, to be more concrete, at first the history of the title trust on a real estate and the basic theory on the crime of breach of trust and the crime of embezzlement under criminal law are summed up (Ⅱ), and then, based on those notions, the legal theory on civil law referring to several types of the title trust on a real estate and various academic opinions concerning about what liability for a crime is charged against him when a title trustee has disposed the real estate trusted to him to a third party are examined, (Ⅲ), thereafter, the causes over the mess of legal opinions about the criminal liability of that title trustee are analysed(Ⅳ).

And next, standards regarding setting delimitation of the relationship between civil law and criminal law are sought(Ⅴ), lastly, a conclusion is drawn(Ⅵ). The conclusion of this theses is as follows : as far as the above Act stipulates the title trust agreement itself as invalid on civil law, the title trustee can not be no longer recognized as having the custody of the real estate trusted to him, and the confidential relation betweenthe title truster and the title trustee does not deserve to be legally protected.

Furthermore, for the judicial precedents of the Supreme Court interprets that the title trust agreement does not come into the performance for illegal cause on civil law, the way to recover his ownership or demand the return of unjust enrichment against title trustee is opened to the title truster. In spite of that, to say that the crime of breach of trust or the crime of embezzlement is constituted is contradiction in itself on criminal law, and is contrary to the principle of supplementary attribution of criminal law, as well as it is absurd from the view of criminal policies.

Therefore, the above action of the title trustee does not constitutes the crime of breach of trust or the crime of embezzlement, regardless of the types of the title trust on a real estate.