부동산명의신탁의 반사회성에 관한 연구

부동산명의신탁의 반사회성과 관련 법리를 검토했다.

In real property title trust, the term title trust agreement means a stipulation made between a person who holds, has actually acquired or is to acquire the ownership of or other real rights to any real estate and another person, to the effect that the person having the actual right holds or is to hold the real right to the real estate internally and another person registers the ownership under his/her name.

According to the Act on the Registration of Real Estate under Actual Titleholder’s name(hereinafter referred to as The Real Estate Real Name Act), established in 1995, no person shall register any real right to real estate under the name of the title trustee pursuant to the title trust agreement(Article 3(1) of the Act). Also, Article 4 paragraphs (1) and (2) of the Act states that any title trust agreement shall be null and void and any change in the real rights to any real estate is nullified but such invalidity under paragraphs (1) and (2) shall not be effective in respect of any third person(Article 4(3) of the Act).

In addition, A penalty within the limit of an amount equivalent to 30/100 of the value of the relevant real estate shall be imposed on any title truster who violates Article 3 (1)(Article 5 of the Act), and the title truster shall be punished by imprisonment for not more than five years, or by a fine not exceeding two hundred million won. Then a title trustee who violates Article 3 (1) shall be punished by imprisonment for not more than three years, or by a fine not exceeding one hundred million won(Article 7(2) of the Act).

The purpose of this Act is to contribute to the sound development of the national economy through the prevention of antisocial acts, such as speculation, evasion of taxes and acts circumventing laws, etc. which abuse the real estate registration system, the normalization of real estate transactions, and the stabilization of real estate prices, by having any ownership and other real rights to real estate registered under the names of those having real rights so as to conform to the substantial relation of rights(Article 1 of the Act).

However, our cases can not be assumed that there is a violation of good morals or other social order in title trust agreement before or after The Real Estate Real Name Act has been enacted. Although the Act was enacted for the purpose of preventing antisocial acts, such as speculation, tax evasion, and illegal acts by abusing the real estate registration system, just because the registration of another person’s name has been completed in connection with the null and void trust agreement does not necessarily constitute a performance for illegal cause, and therefore the title truster’s claim for return of unjust enrichment to a trustee is recognized.

These legal precedents are making the Real Estate Real Name Act ineffective and it seems that it is still encouraging real estate speculation and tax evasion, and it is very regrettable. For this reason, in my opinion, in the light of the purpose of the Real Estate Real Name Act, the provision of penalties for the title truster and the trustee, and the protection provision of any third person for malicious intention in the case of the two-person title trust, the real estate title trust agreement should apply the juristic acts contrary to social order of Article 103 of Civil Act.

Consequently, the legal principle of the performance for illegal cause under Article 746 of the Civil Act should be applied so that the title truster can not claim the return of unjust enrichment to a trustee. In this way, it can be used to eradicate the abuse of the real estate title trust, and it is not against the ordinary legal sense of the people.