3자간 명의신탁에서 명의수탁자의 신탁재산 처분에 따른 법적 책임

Abstract

After the validity of the title trust was recognized during the Japanese colonial period, the Act on the Registration of Real Estate under Actual Titleholder’s Name(Hereinafter referred to as Act on Real Name of Real Estate or the Act) was enacted and enforced to eradicate the title trust, which had been used as a means of various evasion. However, since the Act does not prescribe legal relationship between the title truster and title trustee, the specific details are resolved according to the judicial precedent. The Supreme Court has been changing the precedents on title trusts that were valid in the past to match Act on Real Name of Real Estate. However, the Supreme Court's decision on September 9, 2021, 2018da284233, applies the previous case law even when the trustee disposes of the trust property in a three-party title trust. According to this, if the title trustee disposes of the trust property in a three-party title trust, the title truster can directly claim the return of unfair profits against the title trustee. However, due to the enforcement of the Act, the title trust agreement and subsequent transfer of ownership are invalid. Therefore, in a three-party title trust, it is not legally justified to apply the previous case law to the case where the trustee disposes of the trust property. In the meantime, in order to eradicate the title trust, the Supreme Court denies the title truster's right to claim the return unfair profits against the title trustee of the real estate itself in a three-party title trust, and no longer punishes the title trustee who disposed of the trust property. However, since benefits under the title trust agreement are not recognized as illegal cause benefits, the title truster can directly or indirectly acquire ownership or exercise the right to claim the return of unfair profits, so there is a limit to eradicating the title trust. In particular, while cooperation of sellers is essential in a three-party title trust, the Act does not stipulate any legal sanctions against sellers. In this reality, the Supreme Court's decision on September 9, 2021, 2018da284233, recognizes the right of the title truster to directly claim the return unfair profit from the trustee when the trustee disposes of the trust property in a three-party title trust, and the seller excluded from legal liability. If the seller is legally responsible, the seller is likely to refuse cooperation with the title trust. Nevertheless, due to the convenience and simplicity of legal use, the title truster's right to claim the return of unfair profits against the title trustee is recognized. This Supreme Court All-inclusive decision is contrary to the eradication of title trust and goes against the purpose of the Act on Real Name of Real Estate. Therefore, if the title trustee disposes of the trust property in a three-party title trust, the title truster cannot directly claim the return of unfair profits against the title trustee. The title trustee shall return the profits acquired from the disposal of the trust property to the seller or compensate the seller for damages. The seller shall bear the responsibility for the inability to fulfill the obligation to register ownership transfer to the title truster.