부동산실명법 실효성 제고에 관한 연구: 명의신탁자에게 이익의 귀속을 금지하는 방안을 중심으로

Abstract

The use of title holding trusts or nominee trusts for speculative real estate investment and tax evading purposes is still very common despite the enactment of the Act on the Registration of Real Estate Under Actual Titleholder’s Nmae (hereinafter the “Name Act”). This is mainly because the beneficiaries of such trusts are still enjoying the economic benefit from these truts. This paper argues that by preventing the malicious beneficiaries from receiving the economic benefits from the trust the purpose of the Name Act can be achieved. Under the current regulatory regime, all forms of title holding trusts or nominee trusts recognized under the Name Act still allows beneficiaires to keep economic benefit regardless of any ill intent or purposes. Further, the validity of a transfer agreement between a seller and a beneficiary in transaction which involves no existing trust relation was reviewed separately. For the question of whether the Civil Act’s provision (Article 764) prohibiting receipt of economic benefit from illegal cause, this paper introduces the relevant legal theories and court precedents and makes conclusion that the Civil Act’s provision can serve as one of the most effective means to prevent abusive and tax evading beneficiaries from receiving economic benefit from their title holding trusts and thus achieve the purpose of the Name Act.