명의신탁부동산의 처분행위와 횡령죄 －3자간명의신탁에 관한 대법원 2010. 6. 24. 선고, 2009도9242 판결을 중심으로－

A title trust is an agreement between the possessor of the title trust and the trustee which places the trustee’s name on Register Book as the holder of its external rights, but internally the title trust ownerholds all rights and exercises practically the rights therein. A title trust is usually createdfor real estate, but it is a part of a legal system unique to Korea which is rarely found in foreign judicial cases, so its effectiveness has been recognized mainly by judicial cases in Korea. So, in the past, the court decided that if a title trustee disposed of a concerned piece of real estate against the will of the trustee owner in regards to custody and trust, the trustee was in fact guilty of embezzlement. From that time, the ‘ACT ON THE REGISTRATION OF REAL ESTATE UNDER ACTUAL TITLE HOLDER’S NAME’was enacted and went into effect on July 1, 1995 for the purpose of preventing anti-social activities such as speculation, tax evasion, and manipulation of the laws so now it is prohibited to register any property or holding in the name of another. Therefore, any contract which violates this law and involves change to the true rights of ownership is deemed null and void. Meanwhile, if a title trustee who makes a contract for title trust in violation of the above law disposes of the real estate at will, it is civilly invalid, though the core controversy remains over whether the title trustee should be subject to criminal punishment in order to recognize the relationship between custody and trust. There are various types of title trusts such as the so-called bilateral title trust, a tripartite title trust, the contract title trust. There are opposing theories for each of the above types which admit the crime of embezzlement and others which negate it. The logical basis of the theory of negation of embezzlement is that the concerned law must be interpreted in relationship with civil law or other laws and in the context of the entire legal system, and that only criminal law cannot protect the person who has suffered property damage from the punishment for something defined as illegal in other laws. The theory of affirmation of embezzlement is based on the logic that the status of custodian of the property, which is a component of embezzlement, should be interpreted actively according to the independent principle of the law within the criminal law system. Though the law on the real-name property ownership defines title trust as illegal and does not recognize the civil effectiveness of a title trust agreement and the change in property rights based on it. In fact, the necessity for criminal sanction against a person who makes profits by disposing of the property of the possessor of the title trust cannot be deprived completely, and thus it is thought that even if a title trust agreement becomes invalid, the relationship of custody and trust may well be protected under criminal law if there exist certain legal conditions making it possible for the possessor of the title trust to get the property redeemed from the trustee.For example,in a tripartite title trust relationship, if the title trust agreement between the possessor of the title trust and the trustee is nullified and the change in the property right by the transfer of the ownership in the name of the title trustee based on it is also nullified, it is deemed that the ownership belonged to the seller from the beginning. Then the seller can exercise the right of claim and the cancellation of the registration of the transfer of ownership in order to restore to the original state before the transfer of ownership deemed invalid for the possessor of the title trust. If the ownership returns to the seller by the exercise of the claim of the cancellation of the registration,the possessor of the title trust can retrieve the object of sale by exercising the right of the registration of the transfer of ownership according to the sales contract with the seller (restricted to the contracts recognized effective as usual contracts that generate a claim). In such a legal relationship, it seems reasonable that the criminal law protects the possessor of the title trust who has actually contributed the property, regarding him/her as the victim in the relationship of custody and trust between the title trustee and the possessor of the title trust. The significance of this case is that it has declared that the basic agreement between the possessor of the title trust and the seller should be effective at least as a contract that generates a claim even if the title trust agreement is deemed invalid, so that the possessor of the title trust can make the registration of ownership transfer against the title trustee (subrogating the seller). So, as the possessor of the title trust is a corporation which cannot acquire farmland and thus cannot apply for the cancellation of ownership and the registration of ownership transfer against the seller,and in addition, the actual relationship of custody and trust between the possessor of the title trust and the title trustee cannot be recognized, then it is decided that the title trustee cannot be punished for embezzlement even if he/she disposes of it.