부동산실명법에 대한 입법론적 고찰

Abstract

The Act on the Registration of Real Estate under Actual Titleholder’s Name was effectuated in 1995. The Real Name Real Estate Transaction System implemented by the act, along with the Real Name Financial Transaction System is accredited with having realized great development in economic and social life of our country. There have been lots of controversies over the schemes of the act even before it was made. This paper purports to review critical views and to find out if there’s any provisions to amend. In civil law perspectives, there have been critical views: ① According to Article 4 (1) of the act any title trust agreements and any changes in the real rights made under the title trust agreement are null and void. Some critics view it too farfetched. They claim that there should be some restrictions; ② The Supreme Court acknowledges a title truster the right to redeem the title from the title trustee by claiming unjust enrichment. Some critics argue that the court should abolish the rulings and the act should be amended to eradicate any ambiguities; ③ Article 4 (3) protects the interests of any third party even when he/she is not bona fide. Some critics claim that a third party who are not bona fide should not be protected; ④ Article 8 of the act stipulate an important exception to the The Real Name Real Estate Transaction System for families of same clan and spouses. Some critics argue that there is no longer any reason to maintain such exceptions; ⑤ Some critics claim that religious entities and families of same clan are in essence the same and they should be treated equally. This paper supports ④ of the above critical view and recommends to amend the act according to the view, but does not support the other views. In criminal law perspectives, there have been critical views: ① Article 7 put to criminal sanctions any deeds of title trust regardless of purpose or any other aspects. Some critics view that it violates the double jeopardy doctrine; ② The Supreme Court punishes the title trustee who disposed the real estate at will by embezzlement with exception that the title trust is a contract title trust and the seller is bona fide of the title trust. Some critics argue that under the current law the requirements of embezzlement are not fully met. This paper supports all these critics in criminal perspectives. In sum, this paper recommends an amendment to the current law that maintains the current content of civil law aspects except the exception provision related to families of same clan and spouses and eliminates the deeds of title trust and the disposition of title trustee from criminal sanctions. The above amendment will substantially discourage the would-be title truster’s motive by way of increasing the risks he should take when he does title trust. When an amendment to the current law contains any provision to eliminate the right of a title truster to redeem the trusted title from a trustee, it would not be free of the possibility that the provision would be held unconstitutional.