악의의 계약명의신탁과 명의수탁자의 형사책임

Abstract

In case where the title trustee as a buyer on the basis of the title trust agreement with the title truster enters into a sales contract to acquire the ownership to real estate and the seller knows that there exists the title trust agreement between the title truster and the title trustee, we call such a title trust a “contract title trust in case where the seller knows the existence of the title trust agreement”. Lately, in the cases of a “contract title trust in case where the seller knows the existence of the title trust agreement”, the Supreme Court declared that the title trustee is neither the person who has the custody of the seller’s or the title truster’s property nor administers the seller’s or the title truster’s business(2011Do7361, 2010Do10515). And he gave a decision to the effect that the title trustee can commit a embezzlement if the title truster has a legal possibility to acquire the title trusted real estate itself(2010D010515). But embezzlement is a crime to protect other’s ownership of property, so the victim of the crime is a owner of property. One who has only a legal possibility to acquire a property is not a owner of the property yet, so he cannot be the victim of embezzlement. And the criminal responsibility of the title trustee, having arbitrarily disposed of the title trusted real estate, must be decided in consideration of Article 4 (3) of Act on the Registration of Real Estate under Actual Titleholder’s Name(“Real Estate Actual Titleholder’s Name Act”). Under this article, the title trust agreement and the change of ownership to the title trusted real estate from the seller to the title trustee are handled valid regarding the third person. That is to say, the title trust theory is applied. Consequently, regarding the third person, the title truster is normatively estimated to have been the owner of the title trusted real estate between him and the title trustee, and the title trustee the custodian of the title trusted real estate. Real Estate Actual Titleholder’s Name Act acknowledges the title truster as a “person who has the real rights”, so the title truster becomes the victim due to the title trustee’s arbitrary disposition of the real estate. To be brief, if the title trustee makes disposition of the title trusted real estate as he pleases, for example, when the title trustee gave it as collateral for loan or sold it to any third person without the title truster’s consent, he is to be punished as a embezzlement to the title truster. The judgement of the Supreme Court to deny it is improper.