계약명의신탁에서 신탁자와 수탁자 사이의 새로운 부동산소유권이전약정의 효력 -대법원 2014. 8. 20. 선고 2014다30483 판결을 중심으로-

Article 4 paragraph 1 of the Act on the Registration of Real Estate under Actual Titleholder’s name rules “Any title trust agreement shall be null and void.” As a type of the title trust, contract title trust is also null and void. The existing judicial precedent of the Supreme Court said “the new agreement of transferring real estate ownership between title truster and title trustee in the contract title trust is also null and void. But title trustee shall bear the obligation to return unjust enrichment equivalent to the purchase fund to the title truster.” However, the Supreme Court recently sentenced a different judgment from the previous cases. The Supreme Court said, “Ownership transfer registration is valid if the title truster and the title trustee have agreed to transfer the real estate ownership registration in exchange for the fulfillment of the obligation of returning the unjust enrichment and accordingly the ownership transfer registration has been made.” The court of appeal considered the agreement null and void according to the existing precedent. However, this judgment does not provide a clear criterion as to whether a new ownership transfer agreement is valid in some cases or null and void in some cases after the contract title trust has been established. Also, the court of appeal judged that the ownership transfer registration of the title truster did not match the actual relationship, but the judgment of the Supreme Court at that part was not made. In the end, this judgment remained as an unsatisfactory ruling that did not judge important issues. In this paper, we clarify what the object of unjust enrichment is in the contract title trust, analyze how this decision differs from the existing cases, and then evaluate this judgment.