부동산 명의신탁에서 신탁재산의 소유권 귀속과 부당이득 반환에 관한 연구

Abstract

The Act of Substantial Named Registration has already been for 25 years, but the title trust of real estate hasn't been eradicated. The reasons are that ① there is less effective criminal punishment because of the statute of limitations, ② there are excessively small fines and enforcement penalties compared to profits that can be obtained from title trust. ③ A trustee for arbitrarily disposing of trust property is punished by embezzlement. ④ And, lastly, title truster can recover his trust property or the price by unjust enrichment. Fortunately, in case ③, the Supreme Court of Korea broke the precedent and the embezzlement hasn’t been committed anymore in middle-title-omitted registration title trust. However, a recent Supreme Court ruling confirmed that title truster can retrieve his trust property because the title trust agreement isn’t included in performance for illegal cause under Article 756 of the Civil Law. In the text, this thesis introduces the history of title trust, divides it into three types and explains their effect. And then the paper goes over the validity of the sale contract and the possession of ownership of trust property, and checks the potential for existence of the claim for restitution of unjust enrichment. Afterwards, this thesis reviews that if title trust can be applied performance for illegal cause. Finally, the study reviews what ‘illegality’ of Article 746 of the Civil Law means through the theories and precedent, and then analyzes whether title trust comes under illegality of Article 746 of the Civil Law through theories, precedents and the most recent Supreme Court ruling about it. It is regrettable that, nevertheless the Act of Substantial Named Registration was enacted 25 years ago, Supreme Court failed to consideration of the fact that the popular attitudes towards the law has been changed. Ultimately, title trust abused to evading tax, gambling in real estate, manipulating the law can be eradicated when the penalty and enforcement levy fined title truster and trustee are grown and when Supreme Court let it be known to title trust-er that there is no protection anymore by the Civil Law as well as the Criminal Law.