부동산 명의신탁과 채권자의 사해행위 취소

Abstract

If a debtor registers real estate to a nominal trustee through a nominal trust agreement, then a creditor has become difficulty collecting the debt. In this case, the creditor may exercise a creditor's right of revocation by regarding the nominal trust agreement or the disposal act of the trusted real estate as a fraudulent act. According to the Act of Substantial Named Registration, it stipulates that a nominal trust agreement is invalid and criminally punished to prevent registration of real estate under disguised ownership from being used as means of real estate speculation or tax evasion, however on a principle of compensation of property rights under the constitution, recovery of the ownership is partially recognized. In other words, the title of the ownership is differently prescribed depending on the types of contractual nominal trust such as nominal trust between two parties, intermediately omitted registration and contractual nominal trust. Our Supreme Court takes a stand to judge whether nominally trusted estate comes under a fraudulent act which becomes the subject of creditor's right of revocation depending on if the real estate is vested to chargeable properties according to the type of nominal trust. Though a method of determining whether a fraudulent act is applicable based on whom nominally trusted real estate belongs to may logically maintain consistency, but it does not ensure the validity of application results. Since whether nominally trusted estate becomes chargeable properties as it is vested to someone is a matter of internal relationship between the nominal truster and the nominal trustee, but whether the creditor can exercise the right of revocation for the preservation of the chargeable properties is a matter of external relations, therefore, it is necessary to approach that matter from a different point of view. In particular, in a specific case, it is not easy to distinguish between intermediately omitted nominal trust and contractual nominal trust with the seller in good faith, and in the case that if a nominal trust agreement or change in a real right resulting therefrom is invalid, it is not possible to counteract a third party with the invalidity. Thus, when judging whether it is a fraudulent manner only by considering it is vested to chargeable properties, it may be used as a means of evading coercive execution by making wrong use of the nominal trust system. Therefore, when judging whether a nominally trusted real estate comes under a fraudulent act, it is necessary to determine by considering not whether it belongs to the internally chargeable properties, but who substantively engaged in the act as an actual party and whether it harms the safety of the transaction. If the nominal truster played a leading role and entered into a nominal trust agreement or disposed of the real estate in the same way as the actual owner, it should be seen as the subject of the creditor's right to revoke the fraudulent act.