名義信託不動産의 所有權歸屬 = A Study on Ownership Reversion of Title Trust Real Estate

명의신탁 부동산의 소유권 귀속과 실명등기법상 규제를 검토한다.

How to regulate the title trust of a real has a close relation with how to grasp the nature. The Real Estate Real Name Registration Act includes strong contents to administratively and criminally regulate the title trust of a Real Estate and invalidate its private effect. It is understandable to use such regulative means by legislative policy determination as it can be abused as all kinds of anti-social acts such as speculation·tax evasion·illegal acts.

But it is questionable if such a regulation is assumed on that the title trust of a real property is seen as an unacceptable evil because of the aspects that The Real Estate Real Name Registration Act permits a lot of exceptions, and fundamentally takes on a type of regulating a specific title trust based on the legal principles of case laws formed for the meanwhile. And above all things, it belongs to the area of private autonomy formulated by parties' free agreement, so respecting for their autonomous decision is the rule of private law regulation.

No doubt this private autonomous act needs to be regulated if it is widely abused as an anti-social act, but the regulation should be done within the rule of excess prohibition. Furthermore, our civil law takes a-so-called formalism to the change of a real right, while it does not admit the public confidence of a registration. Thus there may exist not only intentional title trusts, but also quite so many cases that actual entitled parties are different from the registered parties.

So on the assumption that the title trust of a real estate is an essential natural act to exist in the order of a private law, the Real Estate Real Name Registration Act is intended for properly controlling the evils of the anti-social nature. From the viewpoint as above, the contents explored on the ownership reversion of the title trusted real estate can be summed up as follows: In the title trust of two parties, the ownership of the trust real estate was understood as belonging to the title truster for the reason of invalidity of a title trust agreement, and change of a real right.

It can be done through the hindrance removal claim of a real right based on the claim of a real right, or the claim of the registration cancellation or real registration title recovery of trustee through the illegal benefit return of a registration title. If the illegal benefit return of a registration title is recognized as an evil case contrary to ethical morality, it might fall under an illegal created benefit, but seen from the viewpoint on title trust as above, it should be prudently and concretely recognized.

In the interim omission title trust, the ownership of trust was understood as belonging to the title truster due to the invalidity of a title trust agreement of change of a real right. The reason is that even if the title trust agreement is void, the credit act, the reason act of the acquisition of a real right is not affected, so the resultant obligations should be performed to the truster according to the conversion legal principles if invalid act.

In the title trust of indirect representation, the effect of change of a real right differs depending on the vendor's good faith and bad faith, where in the case of the vendor's good faith, the effect of change of a real right is valid, and the ownership of the trusted real estate belongs to the trustee, but the truster can claim only the monetary illegal profit return to the sale price previously paid up.

And in the case of the vendor's bad faith, the effect of change of a real right becomes void, so the registration done to the trustee becomes void, so the ownership to the real estate will have to be seen as belonging to the vendor, when the title trustee is thought to claim the return of the sale price already paid for the reason of the invalidity of the sale contract.

Ⅰ. 序論 Ⅱ. 名義信託의 類型 Ⅲ. 名義信託 約定 Ⅳ. 名義信託不動産의 所有權歸屬 Ⅵ. 結論 저자소개 abstract