名義受託者의 背任行爲와 信託財産 處分行爲의 效力

Abstract

The nominal trust theory of real estate is originally developed through the judicial precedents. Especially, under the rule of Japanese imperialism, the clan could not register the real estate with its own name, because it had not a judicial personality. Therefore a real estate of the clan must had been registered in the name of its a member or members. By the way, many disputes took place in relation to clan's properties, for the reason that the nominal member disposed the property without the permission of the whole members. For the purpose of a solution to those problem, judicial precedents had contrived a following new theory. This theory is that both parties of agreement compose with two parts ownership on the real estate, that is to say, the internal ownership and the external ownership. The internal ownership is held by a nominal truster who is registered in his own name, and external ownership is granted to nominal trustee who possess the property substantially. And even though the nominal trustee, as external owner, dispose of the object to the another person without the internal owner's permission, the another person can acquire the ownership of the object valid. The relations of nominal truster between nominal trustee are as follow. The antisocial agreement for nominal trust relations is null, for the violation of "the Act of Substantial Named Registration" and article 103 of the Korean Civil Law. And the sails contract of entrusted immovables is also null, because antisocial agreement for nominal trust relations has an influence on the sails contract of entrusted immovables. Moreover, the general view and judicial precedents say that if the sails contract of entrusted immovables is null, as an antisocial contract which is applied the preceding Act and the article 103 of the Korean Civil Law, trustor can not demand the restitution of entrusted immovables to trustee, because the article 746 of the Korean Civil Law is applied the delivery performed by the antisocial contract. But I think that the article 746 of the Korean Civil Law have to apply restrictively, and that although the contract for nominal trust relations is null as an antisocial contract, the restitution of delivery performed is possible. Therefore, in Simple Registration Nominal Trust Type, trustor can demand toward trustee the restitution of entrusted immovables, and in Omitted Middle Registration Nominal Trust Type and Contract and Registration Nominal Trust Type, original owner can demand toward trustee the restitution of entrusted immovables. This judicial precedent shows the effect of the nominal entrusted properties sales, the nominal trustee between tiers. If nominal trustee sales the nominal entrusted properties and he breaks the truster's faith with intervention of the third party, that sale is null as an antisocial contract. However, When a trustee sells his entrusted properties to the third party without permission of truster, the Supreme Court has ruled that it is a void contract if the buyer(the third party) knew the trust relation and then took an active part in a trustee's breach of faith. But I think that there are two questions in this standpoint of the Supreme Court. At first, when an ancestor who had been the registered holder of right died, it is a very difficult to confirm whether he was trusted a virtual property by the other or it was his own property. In spite of that, it could be not understood that the Supreme Court has admitted that the person who had the property participated in the formalities of registration as if he knew that the property was a "trust property", on the assumption that "it is a trust property" without special evidences or a confirmation of the fact. And these decisions can't escape the pointing out that it is not suitable to decide the question of validity which could have an enormous effect on the parties' relation at ease. Next, even if it was a invalid contract by reason of the third's an active interference in a trustee's breach of faith, the seller's claim for recapture is rejected by "the Doctrine of clean hands". Therefore the property will belong to buyer. If so, there is a question that what is the reason why the court did not judge the legal property relation of truster and buyer at least. In fact, the court had have to judge that.