명의신탁에 관한 판례의 고찰

Abstract

The current Act on the Registration of Real Estate Under Actual Titleholder’s Name(hereinafter ‘the Act’) presents problems in the theoretical and practical aspects because ⅰ) it lacks the legal and theoretical review of the legal nature of the title trust agreement, and ii) attempts to regulate both internal and external problems. In particular, the issue of the title trust agreement concluded between the title truster and the title trustee (internal relationship) and the issue of whether the sales contract with the seller is valid (in the Trilateral Registered Trust and the Contractual Title Trust) (external relationship), Despite being unable to be discussed in the plane, it seems that various problems arise by including and regulating this in one category of title trust. What the Act prohibits is a title trust agreement and a change in real estate due to it (ie, a title trust), and a sale contract with the seller is not subject to the ban. Thus, as long as the sale contract in the Trilateral Registered Trust is considered valid, the seller's transfer registration to the title trustee should be regarded as valid due to changes in real estate. In the Contractual Title Trust, if the seller is ⅰ) willing to assign the legal effect to the title trustee and does not know the existence of the title trust agreement, ⅱ) willing to assign the legal effect to the title trustee, but he know the existence of the title trust agreement, ⅲ) willing to attribute the legal effect to the title truster and know the existence of the title trust agreement, cases should be reviewed separately.