부동산 명의신탁과 불법원인급여 성립 여부에 대한 고찰

Abstract

It has been 21 years since 『the Act on the registration of real estate under actual titleholder’s name』 came into force. Article 4 of the same law provides that the title trust agreement is invalid and it also recognizes the third party’s acquisition of rights when the title trustee executes it. Meanwhile, for the title truster, the restitution restore of trust property is guaranteed. Eventually, the title truster does not get any public disadvantage other than getting criminal punishment by the same law. However, that kind of criminal punishment was enough only by 『the act on special measures for the registration of real estate』 that was enacted before the the former law. Then, there is no reason to separately enact 『the act on the registration of real estate under actual titleholder’s name』, which has only significance that it declared the title trust agreement as invalid, that was admitted according to Supreme Court cases. However, Supreme Court (2016. 5. 19. sentence 2014do6992) denies the establishment of embezzlement about the title trust agreement of the style of the middle omission registration which has been the main cause of embezzlement so far. It has already denied the establishment of embezzlement about the title trust agreement of contract. Although the establishment of embezzlement about title trust agreement between two parties can still be established, this also has to be changed like the other cases. The title trust agreements motivated by speculation, tax evasion, evasion of compulsory execution, etc, have to be seen as action of anti-public order. Supreme Court has been denying the liability of embezzlement for the reason that ownership is devolved about the performance for illegal cause. The attitude of Supreme Court which does not hold the title trust agreement of the style of the middle omission registration responsible for embezzlement can be seen as declaration that the law does not protect the right of the title truster because the title trust agreement is action of anti-public order. 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 contract as the performance for illegal cause and deny the right to request a return, and finally guarantee the object that the act on the registration of real estate under actual titleholder’s name desires to achieve.