명의신탁된 부동산의 처분행위와 명의수탁자의 형사책임

Abstract

Before The Real Estate Real Name Registration Act's enforcement, Contract of title trust was valid and the change of property rights by the title trust was valid, too. After The Real Estate Real Name Registration Act's enforcement in July 1. 1995, according to Article 4. of that Act, Contract of title trust and the change of property rights by the title trust have become invalid. Since there has been a specific regulation for the title trust, scholars have suggested a variety of perspectives. First, in the case of the title trust of two parties, when the title trustee disposes a real estate without the truster's permission, it constitutes embezzlement. Because the title truster still has ownership of real estate on the basis of Article 4. Clause 1 and Clause 2. of The Real Estate Real Name Registration Act. Second, in the case of the interim omission title trust, the title trustee's disposition of real estate constitutes embezzlement. In this case, in which the vender generally has recognized Contract of title trust, because the registry of ownership transference is invalid on the basis of Article 4. Clause 1 and Clause 2. of The Real Estate Real Name Registration Act and the ownership of real estate belongs to the original proprieter(the vender). Third, in the case of the title trust of indirect representation, because the registry of ownership transference is considered invalid, when the vender is ill-intentioned, the ownership of real estate still belongs to the original proprieter(the vender). Thus, if the trustee sells a real estate to a third party, it constitutes embezzlement. However, when the vender is bona fide in this case, the registry of ownership transference is considered valid, and therefore the ownership of real estate belongs to the trustee as a vendee. Accordingly the title trustee's disposition of real estate does not constitute misappropriation as well as embezzlement.