金融, 不動産實名法(制) 小考 - 대법원 2008다45828 전원합의체판결과 연관하여 -

「Act on the Real Name Financial Transactions and Guarantee of Secrecy」 and 「Act on the Registration of Real Estate under Actual Titleholder’s Name」 are carrying into effect on the purpose that prohibit the borrowed-name bank transactions and title trust agreement for real property. In fact, the borrowed-name bank transactions and title trust agreement for real property are the method of an evasion of the law or an illegal act. The Supreme court has regarded this 「Act on the Real Name Financial Transactions and Guarantee of Secrecy」 on not mandatory provisions but non-mandatory provisions. But there is a extreme exception that true proprietor is not Savings-title trustee, but real savings holder. This attitude makes the purpose of this Act meaningless. To come true the purpose of these act, the Supreme court have to regard these act as mandatory provisions, and I think that the borrowed-name bank account is invalid and an Assembly must make an addition the mandatory provisions that the prohibit title trust of savings from a claim for returning borrowed-name bank account. 「Act on the Real Name Financial Transactions and Guarantee of Secrecy」 regulates title trust agreement on invalidity but the Supreme court don’t look upon title trust agreement for real property as performance for illegal cause. Therefore, the title trustee demands on principal, a real property, or right to request a return of performance for illegal cause. These court’s attitude makes legislative purpose of 「Act on the Registration of Real Estate under Actual Titleholder’s Name」 meaningless. To eliminate from the criticism of title trust agreement, I think that an Assembly must make law about a denial for trust’s returning request. Through the this amended act, in the event that the Savings-title trustee or title trustee dispose trust’s asset of their own accord without trust’s approval, they are not punished. And then, the legislative purpose of previous two act makes come true.