명의신탁과 부당이득반환청구권

Recognizing that the title trust of real estate had been abused to hide the property of jongjoong(종중), the Korean government enacted Act on the Registration of Real Estate under Actual Titleholder's Name in 1995 which includes the provisions on nullification of contract of trust of real estate and of registration of trust of real estate. It is argued that the law failed to uproot/prevent the trust of real estate mainly because many scholars and case laws are of the view that even in the case where contract of trust of real estate and registration of trust of real estate are invalid, the truster entitles to claim the property rights against the trustee or has the right to request for return of the inappropriately acquired benefits. However, there may be conflict between the trust of real estate and the Korean Civil Law. Taking into account the potential adverse effects of the trust of real estate on the society, we should find relevant measures to prohibit it. The measures include one to prevent the truster from getting any legal benefit. We argue that Article 103 of the Korean Civil Law is reflected in the Act on the Registration of Real Estate under Actual Titleholder's Name which prohibits the contract of trust of real estate. In addition, it is reasonable to prevent truster from claiming for the inappropriately acquired benefits against the trustee because the performance for illegal cause are considered to be an unlawful enrichment.