법질서의 통일성 및 명의신탁의 반사회성에 따른 부동산실명법의 입법적 개선방안에 관한 연구

Abstract

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. And Article 3 of The Act states that No person shall register any real right to real estate under the name of the title trustee pursuant to the title trust agreement. Article 4, Section 1 of The Act states that Any title trust agreement shall be null and void. The title trust agreement is illegal, and the title trust is anti-social(public) and has performance for illegal cause. That is, the title trust agreement motivated by speculation, tax evasion, evasion of compulsory execution etc, has to be seen as action of anti-public order. And then, I think that, to eliminate from the criticism of title trust agreement, an Assembly must make law about a denial for trust’s returning request. And Supreme Court must not guarantee the right of claim to return the trust property of title truster, whom can be considered as a criminal, but must consider the property which is offered by the title trust agreement contracts as the performance for illegal cause and deny the right to request a return, and finally guarantee the object that the Real Estates Real Name Act desires to achieve.