名義信託約定의 效力과 信託財産의 返還與否에 대한 法理 再檢討 = A Restudy on the Effect of Nominal Trust Agreement and on the Restitution of Nominal Entrusted Properties

다국어 초록 (Multilingual Abstract)

  This paper is the succession of former study which is "A study on the nominal trust theory of real estate" in SungKyunKwan Law Review Vol.18 No.3, December 2005. In former study, it dealt with many points at issues which are the history and legal background of Nominal Trust Theory, the rearrangement of various types on the nominal trust agreement, and the analysis on contents of the Act of Substantial Named Registration(1995) under the topic of present legal problems and betterment on the future, etc. This paper deals with the problems on the effect of nominal trust agreement and the restitution of nominal entrusted properties.<BR>  The nominal trust theory is that though a trustor transfers his immovables to a trustee and the trustee be registered as an owner in the public register, in the internal relations between the parties the trustor retains the ownership of the entrusted immovables and maintains or avails the property, but in the external relations against the third party the transfer of the entrusted immovable from the trustor to the trustee shall be regarded as perfect. It is originally developed through the judicial precedents, but it had been abused to destroy the ground of clan"s property by the government of Japanese Imperialism. Moreover. it is not conformed to the formalistic registration system of Korean Civil Law and it carries on false transaction and its application to the large extent brings about many legal problems in the modern era. such as land speculation. tax dodging and evading law.<BR>  Therefore in 1995. "the Act of Substantial Named Registration" was established to restrain from unlawful agreement by Nominal Trust. Although this act provides the nullity of agreement for nominal trust relations. but it does not provide on the effect of sails contract and restitution of entrusted immovables. To explain those problems. we have to make clear the purpose of that Act. the relation of trustor and trustee. and the established types of Nominal Trust.<BR>  Conclusionally, this article suggests that the types of nominal trust relations is devide into three, namely "Simple Registration Nominal Trust", "Omitted Middle Registration Nominal Trust" and "Contract and Registration Nominal Trust". The first type is that the trustor and trustee agree for nominal trust relations. and registers entrusted immovables with the name of trustee, the second type is that the trustor and trustee agree for nominal trust relations. and trustor buys entrusted immovables from owner and registers the name of trustee. the third type is that the trustor and trustee agree for nominal trust relations. and trustor mandates to trustee buying entrusted immovables, trustee buys those from owner and registers the name of trustee.<BR>  And this article also suggests as follow. The antisocial agreement for nominal trust relations is null, for the violation of "the Act of Substantial Named Registration" and article 103 of the Korean Civil Law. And the sails contract of entrusted immovables is also null, because antisocial agreement for nominal trust relations has an influence on the sails contract of entrusted immovables. Moreover. the general view and judicial precedents say that if the sails contract of entrusted immovables is null. as an antisocial contract which is applied the preceding Act and the article 103 of the Korean Civil Law. trustor can not demand the restitution of entrusted immovables to trustee. because the article 746 of the Korean Civil Law is applied the delivery performed by the antisocial contract. But I think that the article 746 of the Korean Civil Law have to apply restrictively. and that although the contract for nominal trust relations is null as an antisocial contract. the restitution of delivery performed is possible. Therefore. in Simple Registration Nominal Trust Type, trustor can demand toward trustee the restitution of entrusted immovables. and

목차 (Table of Contents)

• Ⅰ. 序說
  Ⅱ. 不動産實名法의 制定目的과 立法意見
  Ⅲ. 名義信託關係의 設定을 위한 法律行爲의 效力
  Ⅳ. 名義信託의 法律關係와 名義信託者의 返還請求
  Ⅴ. 結語
  [Abstract]