명의신탁에 관한 관습

Abstract

The principle regarding nominal trust recognized by the Korean Supreme Court is recognized as a kind of customary law. However, it is not known what the customs about nominal trust were. The purpose of this article is to identify customs about nominal trusts and to clarify their meaning. The real estate nominal trust was first recognized in the ruling of the Joseon High Court during the Japanese occupation. However, customs similar to nominal trusts existed in the Joseon Dynasty as well. The customs about nominal trust can be traced to some previous customs as follows: ① the custom of the Yangban(master) to trust the sale of his property to his servant in the family, ② the custom of entrusting and managing the property of the families in the same clan and community to one member of the clan, ③ the custom of entrusting a private property into the royal land. The customs of ① and ② can be regarded as customs about nominal trust, whereas the custom of ③ is more appropriate to be seen as ‘evasion of the law’ or ‘disguised payment’ rather than ‘trust action’. During the Japanese colonial rule, the slavery system was abolished, and thus the custom of ① disappeared. As the entrustment to the royal land was abolished, the custom of ③ extinguished as well. Therefore, among the customs that can be seen as a traditional nominal trust, only the custom of ② remained. The Joseon High Court introduced the theory of trust behavior with reference to the Japanese Supreme Court ruling. In particular, the Joseon High Court applied the theory of trust to the custom of trusting the property of the families in the same clan to one member of the clan. The Japanese Supreme Court accepted the German theory of trust, and the Joseon High Court, which referred to it, constituted the legal structure of the nominal trust that the external ownership belongs to the trustee but the internal ownership is reserved to the trustor(Classification of internal and external ownership). After the liberation, the Joseon High Court's legal principles led to the jurisdiction of the Korean Supreme Court's nominal trust. The principle of nominal trust recognized by the Joseon High Court can be regarded as a kind of ‘the precedent changed to customary law’ and ‘an example of Rechtsgestaltung beyond the provision’. Therefore, it is reasonable to judge the nominal trust as a kind of customary law. However, after Act on the Registration of Real Estate under Actual Titleholder's Name was enacted, the nominal trust was converted from customary law to positive law.