契約登記名義信託을 둘러싼 몇 가지 法律的 爭點에 대한 검토

Abstract

In principle, Act of Substantial Named Registration denies the nominal trust agreement and juridical effect about the change of a real right(the provisions of Article 4). And then the details of specific legal provisions in legal effect do not exist, it is entrusted to the theory and precedent. This paper deals with the ‘contract and registration nominal trust’ on the effect of nominal trust agreement and the restitution of nominal entrusted properties. Although the provisions of Article 4 Act of Substantial Named Registration provides the nullity of the agreement for nominal trust, this Act do not rules agreement about the standing of contracting parties. Therefore, we studied what is the legal nature of this agreement and finding which the relevant parties to the sales contract are. In addition, cases were reviewed before the enactment of Act of Substantial Named Registration as a prerequisite for understanding this contents. Meanwhile, The provisions of Article 4, clue of clause 2 do not rules the effect of the contract between the trustee and the owner about buying the properties. By the way, effect of nominal trust agreement do not influence the contract between the trustee and the owner. On the one hand, In case contract and registration nominal trust made ​​before the enforcement of Act of Substantial Named Registration, its real estate blindness transition after the implementation, object of claim for restitution of unjust enrichment is the real estate itself. In case contract and registration nominal trust made ​​since the enforcement of Act of Substantial Named Registration, object of claim for restitution of unjust enrichment is the fund given by the truster. By the way, in case of the provisions of Article 4, clue of clause 2 interpret by contraries, a real estate sales contract should be considered invalid, because such a contract signed after the effectuation of this act since the contract would be aiming to achieve a default.