부동산실권리자명의등기에관한법률상의 명의신탁에 관한 연구 = A sudy of title registration under the third party's name under the law for registration of the Real Rightful Person of Real estate

국문 초록 (Abstract)

영문초록:When the Chosun Government-General implemented the land survey project and the forest land survey project in the 1910s, one member or several members of the family or clan without any right to register was authorized to register its land in his name or their names for the sake of convenience. As regards such a phenomenon, the Chosun High Court applied the theory of trust act originating from Germany and developed the theory that ownership should be divided and ascribed in accordance with the internal/external relationship. After Korean liberation from Japanese imperialist domination, this theory was succeeded to by the supreme court as it was and sophisticated as the well-established theory. In theory, it had some problems such as the relational division of ownership or unclear grounds for protection of the third party in bad faith. But among other things, this system of title registration under the thirty party's name has actually been abused as the means for being acquitted of compulsory execution, avoiding taxation in relation to speculation in real estate, avoiding the application of laws and regulations requiring all kinds of restrictions and the like under this well-established legal support. This has caused great social problems and come to be understood as contracts against puslic policy. So, an attempt was made to prevent contracts against puslic policy such as speculation, tax evasion and the evasion of the law misusing the real estate registration system, normalize real estate transactions and stabilize real estate prices by requiring the real rightful person to register the ownership and other real rights relative to real estate to correspond to its substantive rights. As a result, the Law for Registration of the Real Rightful Person of Real estate was enacted as the law issue No. 4944 in Mar 30, 1995 and enforced in July 1, 1995. The above Law imposes strict restriction on title registration under the thirty party's name and requires that the trustee of real estate not register it in his or her name on the basis of the covenant of title registration under the thirty party's name. Though the legal effect of the registration of changes in the real right is negated by annulling the covenant of title registration under the thirty party's name relative to the real rights of real estate, it is required that this annulment can not oppose the third party. As the means for securing administrative fulfillment to secure its effectiveness, surcharge and performance bond is imposed. In addition, it is required that criminal punishment can be imposed on those involved in title registration under the thirty party's name. Furthermore, it was required that title registration under the thirty party's name made before the enforcement of the Law should be made in real name or disposed of by sale within the grace period and the existing covenant and title registration under the thirty party's name made in real name was negated in its effect.Revolutionary changes have come to occur in the existing theory of title registration under the thirty party's name, but it can be said that the doctrine of title registration under the thirty party's name is imputably applicable to the title registration under the thirty party's name of the real estate owned by the clan or family, the title registration under the spouse's name, the so-called mutual title registration under the thirty party's name and the like. The existing theory of title registration under the thirty party's name can never come to account for title registration under the thirty party's name of real estate applied by the above Law. According to the legal doctrines and judicial precedents for the years, the legal relationship comes to vary according to three types of title registration under the thirty party's name such as title registration under the name of both parties, title registration under the thirty parties' names and contract-based title registration under the thirty party's name. This study attempted to explicate the legal relationship according to each type of title registration under the thirty party's name as a considerable number of judicial precedents have accumulated for 10 years since the above Law became effective. In addition, this study sought to examine the problems raised as the above Law. It is thought that to reform the accumulated practices, it was ineluctable to adopt the means chosen in the Law: the agreement of title registration under the thirty party's name and the accompanying invalidation of registration; the heavy means for administrative and criminal sanction; the imposition of the obligation to convert the existing title registration under the thirty party's name into the registration in the real name; a sanction for the real estate owner being unregistered for a long time; and the like. There is no gainsaying that many progressively people understand title registration under the thirty party's name to be unlawful in their legal consciousness, whereas title registration under the thirty party's name is still prevalent. But 10 years have passed since the enforcement of the Law, and as pointed out as to the problem of the Law itself, it is necessary to find out its improvements. In order to prevent title registration under the thirty party's name from being abused for the unlawful purpose, the shock therapy should not be depended on but false registration should be prevented from taking root in our society by making it more transparent and improve the registration system