명의신탁의 연혁에 관하여

Abstract

The theory of title registration under a third party's name was started from recording by the constituent member's name of one person when the families of the same clan had to record own property right. It is prohibited by the law now because this had various problems. However, the theory is still alive as the interpretation principle of the civil law method. It is necessary to understand why Chosun Supreme Court gave such a legal decision though the theory that became basic of Title registration under a third party's name is a judicial precedent of that. As for Chosun Supreme Court, transfer under trust that transferred only the name of recording was widely admitted. It was put out because the associated problem is caused in the property right of the families of the same clan. I think that Chosun Supreme Court was selected to have admitted title registration under a third party's name to match a past ownership pattern to a modern recording system. Afterwards, the Supreme court judged the recording by transfer under trust to be effective as well as Chosun Supreme Court. On the other hand, insisting becoming invalidity by fictious declaration of intention is a theory in the recording. However, the recording system had already been enforced at time and 50 years had passed. It is thought that it was difficult for the supreme court to judge that all are invalid such recording. I think that the supreme court did a reasonable judgement.