계약명의신탁에서 수탁자의 임의처분행위에 대한수탁자의 불법행위책임

Abstract

The contract title trust is a type of title trust where the title trustee makes a contract with a seller of the real estate as a party of sales contract and registers in the name of his own. The title truster is not a party of the sales contract but the purchase fund provider. This Article comes to tort liability for a contract title trustee who acts on disposal of real estate. Recently, in the case of a “contract title trust in case where the seller knows the existence of the title trust agreement”, the Supreme Court declared that the disposal of the title trustee in contract title trust is not responsible for the action for damages because there is no damage for the seller. Claims for damages are not allowed in case of the circumstance that seller received the purchase fund. The basis of an argument is that the seller has the right to refuse his own duty of returning the purchase fund in the respect of KBGB 536, unless he gives back his ownership of the real estate. However, the price of real estate rises generally, so the seller has damages. When the title trustee makes disposition of the title trusted real estate as he pleases, the price of real estate estimated in current prices may be higher than the purchasing price the seller received before. The seller has damage of an difference between the two price. The judgement of the Supreme Court to deny it is improper. This article points out that the disposal of the title trustee in contract title trust becomes tort. On the other hand, when the title trustee sold it to any third person without the title truster's consent, the Supreme Court held that the title trustee is not the person who has the custody of the seller’s property. This article agrees with the Supreme Court's Judgment that the title trustee's disposal in contract title trust is not embezzlement, but not with the arguments. The title trustee's disposal of the trusted real estate may not be punishable by embezzlement or breach of trust in a point of view that title trust of real estate is nothing but trust based on confidence which is of no worth protected with punishment. This view point is identical to the purpose of The Act on the Registration of Real Estate under Actual Titleholder's Name ; The above opinion will substantially discourage title truster's motive by way of increasing the risks he should take when he does title trust.