부동산 명의신탁에서의 횡령죄 성립여부에 대한 비판적 고찰

부동산 명의신탁에서 횡령죄 성립 여부를 비판적으로 검토한다.

Article 1 of The Real Estate Real Name Act states that 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.

However, the Act has not been actually effective, because, though the Act have stated that No person shall register any real right to real estate under the name of the title trustee pursuant to the title trust agreement, the Title Trust Agreement have been widespread. To eliminated the illegal Title Trust, the Establishment of Embezzlement in The Title Trust should be denied. Fortunately, recently Supreme Court(2016. 5. 19. sentence 2014do6992) denied the establishment of embezzlement about the title trust agreement of the style of the middle omission registration. Also it has already denied the establishment of embezzlement about the tile trust agreement of contract.

The attitude of the Supreme Court like that, I think, is desirable. Because the Title Trust is an Anti-Social and Illegal, it should be prohibited entirely. I wish the right of claim to return the trust property of title truster to be considered as a criminal should not be guaranteed by Supreme Court, and that the property offered by the title trust agreement contract is regarded as the performance for illegal cause.