부동산실명법 시행 후의 명의신탁 법리 = Interpretation and Application of Title Trust in Accodrance with the Act on the Registration of Real Estate Under Actual Titleholder’s Name

부동산실명법 시행 후 명의신탁 법리의 해석과 적용을 검토한다.

The Act on the Registration of Real Estate Under Actual Titleholder’s Name (in short, “Real Estate Registration Act”) was enacted to prevent harmful effect of real estate title trust, but the interpretation and application have not been satisfactory. Theory of real estate title trust incorporates the concept of separation of internal and external ownership, and acknowledges a property owner different from the registration of real rights over immovables. However, this is against the legislative decision to turn away from intentionalism to formalism for transfer of real estate rights under the Korean Civil Act.

Interpretation should be in accordance with such legislative decision, and the purpose of the Real Estate Registration Act is to prevent any act against formalism. In any types of title trust, internal and external ownership are not separated, and only the titleholder is the property owner. In a two-way title trust case, disposal by a trustee is not embezzlement because the trustee is internally and externally the owner, and thus he is not ‘a person having the custody of another’s property.‘ As long as a truster who purchased property signs a title trust agreement with such intention and registers trustee as an owner, the purchase is complete.

Therefore, there is no way for the truster to obtain the property ownership under his own rights, and it can only be done by a separate agreement with the trustee. This is because the Real Estate Registration Act considers a title trust agreement and the transfer of real estate rights null and void.