名義信託의 法理에 관한 硏究 : 부동산 실명법 시행 후의 판례를 중심으로

부동산 명의신탁 법리를 실명법 시행 후 판례를 중심으로 고찰했다.

The "Myeong-Eui Trust" may be translated into English as "name trust", "nominal trust" or "title trust". It is a unique theory in Korea which is unknown to other countries. This theory was first induced under the Japanese regime at the time of screening of land, etc. pursuant to the Land Investigation Order and the Forest Land Investigation Order from the theory of act of trust of Germany, in order to prevent various confusions that were caused by the screening and registration of the ownership of the properties of the clan in the name of one or several members of the clan at that time, due to the absence of any method to screen and register the ownership in the name of clan.

This theory had been stabilized by precedents of the Supreme Court since independence from Japanese Colonization. Having no manifest ground in the Statutes as act of the Civil Law, it had been used widely and frequently in our legal life. It was prevailing over not only the matters concerning the registration of real estate of the clan, but also the broad scope of our legal life.

According to the precedent, the "Title Trust" is such a trust that, though a truster transfers his real estate to a trustee, and the trustee is registered as an owner in the public register, in the internal relations between the parties the truster retains the ownership of the entrusted real estate and maintains or uses the property, but in the external relations against the third party the transfer of the entrusted real estate from the truster to the trustee shall be regarded as perfect. The "Myeong-Eui Trust" has been used as a means for the evasion of the law of various kinds; to conceal one's property or to disperse one's property, etc.

Many scholars have criticized the theory, claiming that it lacks theoretical system because the theory itself was stabilized by precedents and there is inconsistency between them. In addition, the theory has been criticized that its broad scope results in suggesting too various issues to be considered. As the necessity of regulation tax evasion and land speculation grew, the government enacted a law named "Act on Special Measures for the Registration of Real Estate" in 1990 which banned registration in other people's names for the purpose of evading taxes and other governmental regulations but which didn't nullify the effect of the "Title Trust".

So, the law became a scrap of paper in the face of repeated precedents set by the Supreme Court which recognized trusteeship as valid. Therefore the government moved to nullify the over 8-decade-old custom of allowing borrowed-name registrations in an attempt to root out tax evasion and curb land speculation, etc. At last, the government enacted a stronger law than the above one named "Act on The Registration of Real Estate under Actual Title-Holder's Name" in 1995.

The new law provides clearly that the purpose of the Act is to contribute to the sound development of the national economy through the prevention of antisocial actions, such as speculation, evasion of taxes and acts circumventing laws, etc. which abuse the real estate registration system and to strive to normalize real estate transactions and stabilize real estate prices by having any ownership and other real rights to the real estate registered under the names of those having the actual rights so as to conform to the substantial relation of rights in the article 1(Purpose).

It defines "title trust agreement(it translates 'Myeong-Eui Trust' into title trust')", "title truster", "title trustee", and "real name-registration" in the article 2(Definitions).

It stipulates that no person shall register any real right to real estate under the name of the title trustee under the title trust agreement and that where a creditor has a real right to any real estate transferred to secure a performance of obligation, he shall submit to a public official in charge of the registration an application for registration accompanied by a document specifying the obligor, amount of credit, and the fact that it is a security for the performance of obligation at the article 3(Obligation, etc.

for Registration in Name of Person having Actual Right) It states that any title trust agreement shall be null and void, and that any change in the real rights to any real estate by a registration made under the title trust agreement shall be null and void; provided, that this shall not apply in a case where the title trustee is one of the parties to the contract to acquire the real right to real estate, and the other party thereto does not know the fact that there exists the title trust agreement at the article 4(Effect of Title Trust Agreement) It also states that any title truster who has registered, or has another person register the real right to any real estate under the name of the title trustee according to the title trust agreement, before the act enters into force (hereinafter referred to as the "existing title truster") shall make an actual name registration within a period of one year as of the enforcement date of the Act (hereinafter referred to as the "grace period") at the article 11.

It prescribes heavy penalty at the article 5, heavy forced performance charges at the article 6, and severe punishment at the article 7. And It prescribes special case for families of the same clan and spouse at the article 8. But it does not mention to whom the trusted real estate shall belong. As a result, the problem is up to the court in each case. Many scholars, judges and practitioners have tried to present their opinions or theories to solve the problem and some related matters since the Act was made. And the Constitutional Court judged the constitutionality of some provisions of the Act.

Accordingly the purpose of this article is to arrange the theories established by the precedents, to introduce the Act, to present the problems of the Act and to summarize the opinions or theories. I am looking forward to observing additional opinion

목차 第1章 序論 = 1 第1節 硏究의 目的과 範圍 = 1 第2節 硏究의 方法 = 4 第2章 名義信託에 관한 判例理論 = 6 第1節 名義信託의 槪念 = 6 I. 信託의 意義 = 6 II. 信託의 機能 = 7 III. 名義信託의 意義 = 7 IV. 判例上 名義信託의 對象 = 8 第2節 名義信託關係의 成立 = 9 I. 名義信託設定契約 = 9 II. 默示的·推定的 契約 = 9 III. 追認에 의한 名義信託 認定 = 10 IV. 中間省略登記에 의한 名義信託 = 11 1. 判例 = 11 2. 無效說 = 11 3. 有效說 = 12 V. 名義信託과 强行法規 = 12 第3節 名義信託의 法律關係 = 13 I. 名義信託의 法律的 構成 = 13 II. 名義信託의 對內的 效力 = 14 1. 所有權의 留保 = 14 2. 受託者의 義務 = 15 3. 信託關係의 承繼 = 15 4. 信託不動産에 대한 時效取得 = 16 5. 慣習上 法定地上權과의 關係 = 16 III. 名義信託의 對外的 效力 = 17 1. 所有權의 移轉 = 17 2. 受託者의 信託財産 處分 = 18 3. 信託者의 信託財産 處分 = 18 4. 信託者의 제3자에 대한 所有權行使 = 19 5. 信託契約의 解止時 官廳의 許可 = 20 第4節 名義信託關係의 解消 = 20 I. 名義信託契約의 解止 = 20 1. 解止權者 = 21 2. 解止의 方法 = 21 3. 解止의 效果 = 21 4. 解止와 登記 = 24 5. 登記名義의 回復方法 = 25 II. 기타 解消原因 = 25 第5節 相互名義信託의 法律關係 = 26 第6節 判例理論의 批判 = 27 I. 名義信託의 有效性 = 28 1. 無效