명의신탁된 부동산에서 수탁자를 변경하는 경우 사해행위의 판단 - 대법원 2008. 9. 25. 선고 2008다41635 판결 -

Abstract

The decision was that a contract-name trust and a three-party were consecutively made for real estate, and the trustee's ownership was not recognized, so it could not be regarded as a executable property of title trustee. The court's judgment may seem logically clear, but when a title trust agreement is signed once more than the existing title trust, the trustee can effectively protect the title trust property from the settlor's creditors. The decision was that the title trust was made twice, but in some other precedent, was also another view, a series of process of the title trust, so the standard was not constant. The logic that constitutes a three-party title trust as a substitute for the obligation to return unfair gains equivalent to the transaction price in the contract name trust also escapes the actual titleholder’s name act. Therefore, there is available concept for seeing that the trustee’s status has changed through the succession of the title trust relationship. In other words, the trustee who has been changed from the title-name trust whose seller is in good faith acquires ownership and bears the obligation to return the unfair gain equivalent to the trading price to the settlor. In addition, in the fact that the existing debtor does not bear heavier debt, succession of invalid contractual relationships may be permitted. In addition, property in the name of the trustee shall be regarded as the executable property of the trustee. executable property under the Civil Execution Act has a broad scope of concept, such as a third party for “fictitious declaration of intention”, rather than ownership itself, and under the actual titleholder’s name act, it would be inappropriate to interpret ‘third party’ narrowly as a “new stakeholder” or “a person with an appearance such as seizure”, such as a bona fide third party in “fictitious declaration of intention”.