부동산실명법을 위반한 등기명의신탁의 사법적 효력 -명의신탁자에게 소유권귀속을 차단하는 방안을 중심으로-

Although a quarter of a century has passed since the implementation of the The act on the Registration of Real Estate under Actual Titleholder's Name, the practices of title trust have not been rooted out at all because the precedents in the current law have not prevented a trusted real estate from belonging to a truster. For the purpose of the The act on the Registration of Real Estate under Actual Titleholder's Name, namely to exterminate the title trust practices often involved with tax evasion, speculation, and other law manipulations, it is necessary not to attribute ownerships of trusted properties to trusters. This article examines this issue centered around the cases of registration title trust of three-party and two-party. It argues, given the purpose of the Act, a sales contract between a seller and truster in a three-party registration title trust seems hard to be valid, and thus the ownership of the trusted property should not be vested in the truster. In a two-party registration title trust, it may look difficult to deny the truster’s ownership solely with what the Act states. However, even in this case, a truster’s request for unjust enrichment from a trustee can be a performance for an illegal cause so that it should be banned. Ultimately, for achieving the purpose of the Act, such amendments should be considered: ensuring that ownership of a trusted property is attributed to a trustee and removing a clause on charging a penalty for compelling the performance.