‘부동산실권리자명의등기에관한법률’상 명의신탁의 적용범위

Abstract

'Act on the Registration of Real Estate under Actual Titleholder’s Name' is legislated to contribute to the sound development of the national economy through the prevention of antisocial actions, such as speculation, evasion of taxes and acts circumventing laws, etc. This Act enforce a person having real rights to register any ownership or other real rights to the real estate under his own name. Namely, no person shall register any real right to real estate under the name of the title trustee under the title trust agreement(Article 3. (1)). So any title trust agreement shall be null and void, and any transfer in the real rights to any real estate by a registration made under the title trust agreement shall be null and void (Article 4. (1), (2)). The definitions of terms used in this Act shall be as follows (Article 2). The term of "title trust agreement" means a stipulation (including cases where it is made in the form of a mandate or the sale on consignment or ratification) made between a person who holds, or has actually acquired or is to acquire, the ownership or other real rights to any real estate and another person, to the effect that the person having the actual right holds or is to hold the real right to the real estate internally and another person registers the ownership under his name (including a provisional registration). Provided, however, that each of the following items are excluded:(a) Where a creditor has a real right to any real estate transferred, or makes a provisional registration of it, to secure a performance of obligation;(b) Where two or more persons agree to specify the location and area of real estate and to hold a partition ownership, respectively, and they make a registration as co-ownership of such partition ownership; and (c) Where it is registered the fact that the real estate is a trust property as prescribed by the Captial Market and Financial Investment Business Act. The provisions of Article 4 through Article 7, and Article 12 (1) and (2) shall not apply in any case which falls under any of the following sub-paragraphs and is not involved in evading any tax, avoiding any compulsory execution, or evading any legal restrictions (Article 8):1. Where the real right to any real estate held by a family of the same clan is registered under the name of a person other than the family of the same clan (including a case where the registration is made with the family of the same clan and its representative indicated together); and 2. The real right to any real estate is registered under the name of a spouse. And obligation of real name registration shall not apply in case of real estate the title of which is entrusted by a religious organization, a local school annexed to a Confucian shrine, etc., with no intention of tax evasion, any evasion of compulsory execution, etc., under the provisions of the Presidential Decree (Article 11. (1)). Despite the definition of title trust agreement in this Act, it is not clear to apply this Act to practice. And some of title trusts can not be regulated by this Act, which is regulated by precedent cases. So then, it is necessary to clear the application sphere of title trust in this Act. Thus in this study, the writer examines the application sphere of title trust in this Act.