부동산 명의신탁의 불법원인급여 성립 여부 - 대법원 2019. 6. 20. 선고 2013다218156 전원합의체 판결과 관련하여 -

명의신탁 약정과 등기의 불법원인급여 성립 여부를 검토했다.

Since title trust agreement is invalid cause of violating of ‘the Act on the Registration of Real Estate under Actual Titleholder’s Name’, it has always been the subject of legal disputes whether the registration is regarded as the performance for illegal cause. The existing legal rule has been sustained by a long-term precedent, it is that “It cannot be concluded that the registration is not regarded as the performance for illegal cause only because it was registered in the name of the title trustee in violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name”.

On the contrary, criticism has been raised by academics that the transfer of registration under the title trust agreement is the performance for illegal cause, so that the title truster cannot exercise the right to claim the return of the trust property, and that the trust property is attributed to the title trustee due to its reflective effect.

In addition, it has the following problems structurally, ① whether the title trustee who arbitrarily disposes of the trust property is punished by embezzlement, ② the issue of restoration of title trust in litigation for cancellation of act that does harm the creditor of the title truster, ③ the question of who is imposed on the trust property acquisition tax in accordance with the principle of actual taxation. In order to judge the decision to change the existing precedent, the Supreme Court shall refer it to the consensus, and listen to the opinions of various fields on February 20, 2019.

Finally, the majority opinion(9persons) reaffirmed the validity of the conventional precedent, and the dissenting opinion(4persons) now requires a judicial decision to eradicate the title trust. In this paper, I would like to examine the possibility that the court can judge the title trust as the performance for illegal cause, taking into account specific circumstances such as the motive and purpose of the title trust, with the legislative improvement according to the changed reality of society.