부동산실권리자명의등기에관한법률 시행 전후의 명의수탁자의 처분행위에 대한 형사책임에 관한 연구

The Real Estate Real Name Act has been enacted to prevent the ownership of real estate from being validly transferred to a "trustee," not to ignore the rights of a "trustor." Thus, by regulating that the "trustor" can claim the ownership of real estate against the "trustee," the "trustee" who has sold real estate without the "trustor's" permission can be charged with embezzlement. Before the enactment of the Real Estate Real Name Act, the Supreme Court held that the "name trust" scenario is legally valid. However, after the Act, it has become invalid and illegal. Therefore, this article mainly reviews how the criminal liability of the "trustee" in "name trust" has changed. In general, courts and law scholars have the opinion that: although "name trust" is invalid and illegal, there still exists a de facto trust relationship between the "trustor" and "trustee" and therefore the "trustee" has a de facto trustee status. And, in the "name trust" or "trilateral name trust" (i.e., skipping the middle registration) scenario, it is generally accepted that the "trustee" is guilty of embezzlement because "name trust" or "trilateral name trust" is invalid and therefore, as a matter of law, the ownership of real estate is not transferred from the "trustor" to the "trustee."In the case of "name trust" by contract, if the seller of real estate knew about the "name trust" contract relationship between the "trustor" and "trustee," the "trustee" would also be guilty of embezzlement. However, as an exception, if the seller did not know the "name trust" contract relationship between the "trustor" and "trustee," the "trustee" would not be charged with embezzlement because the ownership of the real estate would have been validly transferred from the "trustor" to the "trustee." The Supreme Court have the opinion that the "trustee" would not be charged with either embezzlement or breach of trust in such case. Yet, some scholars argue that the "trustee" should be guilty of embezzlement, and others argue that the "trustee" should be guilty of breach of trust. The reason why the ownership of real estate is validly transferred from the "trustor" to the "trustee" under such circumstances is to protect the innocent seller, not the "trustee." In this perspective, there is no reason to treat them (i.e., the "trustee" in "name trust" or "trilateral name trust" and the "trustee" in "name trust" by contract) differently. This article therefore argues that the "trustee" in "name trust" by contract should also be guilty of embezzlement. I personally look forward to seeing the Supreme Court change its opinion on this matter, and in terms of the legislation, I have the opinion that the provision invalidating "name trust" needs to be revised. The Real Estate Real Name Act has been enacted to prevent the ownership of real estate from being validly transferred to a "trustee," not to ignore the rights of a "trustor." Thus, by regulating that the "trustor" can claim the ownership of real estate against the "trustee," the "trustee" who has sold real estate without the "trustor's" permission can be charged with embezzlement.