부동산 실권리자명의 등기에 관한 법률에 위반한 명의신탁약정과 불법원인급여

Abstract

Article 4(1) of the Act on the Registration of Real Estate Under Actual Titleholder’s Name (hereinafter “Real Estate Real Name Act”) stipulates that any title trust agreement shall be null and void. The subparagraph (2) of the said Article states any change in the real rights to any real estate by a registration made under the title trust agreement shall be null and void. At the same time, Article 1 of the Real Estate Real Name Act clearly states that the purpose of the 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. With regard to the purpose of the Real Estate Real Name Act, it has been disputed that whether a title trust registration completed under a title trust agreement in violation of the Real Estate Real Name Act, which is thus made null and void, constitutes performance for illegal cause, or, illegal consideration, and, accordingly, whether a title trustor has to be considered not eligible to file a claim for recovery of the right to real estate against a title trustee. The subject case pertains to a title trust agreement, concluded for the purpose of evading disposal orders under the Farmland Act, under which the registration of ownership transfer was completed under the name of the title trustee. In the en banc decision, the Supreme Court declared as follows: (a) comprehensively taking account of the language and text of the provisions, contents, structure and legislative intent of the Real Estate Real Name Act, the registration made in the name of the title trustee pursuant to the title trust agreement in breach of the Real Estate Real Name Act, which is thus made null and void, may not be considered to constitute performance for illegal cause; (b) the same goes for the instant case where the title trust was created to evade the restrictions imposed by the Farmland Act. The Majority Opinion in the subject case stated as follows: (a) in light of the provisions under the Real Estate Real Name Act stipulating that not only a title trust agreement but also the changes in real rights under such an agreement is null and void, it is evident that the Real Estate Real Name Act is enacted under the premise that the ownership of the trust property belongs to the real right holder, and such an interpretation conforms to the legislative intent, which is known through legislative chronology and the background leading up to the legislation; (b) the application of the illegal consideration clause in breach of substantive justice has to be avoided and, hence, attributing the ownership of the trust property to the title trustee, who cooperated in committing an illegal act by agreeing to sign a title trust agreement, runs counter to the concept of justice; (c) it is prohibited to infringe upon the essential part of the right of property in relation to the title trustor’s trust property beyond what is prescribed in the Real Estate Real Name Act for the sole purpose of proscribing a title trust. The Majority Opinion was followed by a dissent by four Justices stating that, unless special circumstances emerge, a registration that is made in the name of the title trustee pursuant to a title trust agreement concluded in violation of the Real Estate Real Name Act, which is thus made null and void, constitutes an illegal consideration, considering the legislative process and purpose of the Real Estate Real Name Act, the perception of the general public in our society towards a title trust, and the definition and limitation of the right of property under the Constitution. Starting from the awareness of the reality where, even after the enactment of the Real Estate Real Name Act in 1995, the title trustor has been able to recover the right to the trust property based on his/her ownership, the subject case proclaimed that applying the illegal consideration clause to such a practice goes against the explicit provision in the Real Estate Real Name Act, and is therefore prohibited. However, it is worth reminding that the subject case’s intention is never to protect a trustor who concluded a title trust agreement in violation of the Real Estate Real Name Act. Rather, it is expected that, inasmuch as the limitation and the need for improvement with respect to the Real Estate Real Name Act came to light during the process of public proceedings and adjudication, prompt legislative measures to eliminate a title trust would follow.