명의신탁과 횡령죄에 관한 제 문제

Despite that the Act on the Registration of Real Estate Under Actual Titleholder's Name was established and enforced in 1995, there has been much controversy regarding the interpretation of the nominal trust of real estate. The core of the controversy is the criminal liability of the trustee who randomly disposed of nominally trusted real estate and whether or not the nominal trustor can restore the registration of trusted real estate into his/her name or recover the money given to the trustee unfairly. In particular, in the bilateral nominal trust, if the trustor is able to restore the registration in the trustee’s name into his/her own name, it is highly likely that the trustee's status as a custodian will be acknowledged so that there will be a room for the trustee to bear the guilt of embezzlement. First, with regard to whether embezzlement is established on the trustee who randomly disposed of nominally trusted real estate, in an en banc decision, the Supreme Court denied the establishment of embezzlement indicating that in the case of an intermediate omission type nominal trust, the entrustment trust relationship necessary for the establishment of embezzlement cannot be said to exist between the trustor and the trustee and that even if there is an actual entrustment relationship between the trustor and the trustee, it cannot be said to be based on trust that is worthy of protection by the criminal law since it is just an illegal relationship that constitutes a crime by violating the Act on the Registration of Real Estate Under Actual Titleholder's Name. Second, with regard to whether or not the trusted real estate corresponds to a performance for illegal cause, the Supreme Court ruled in an en banc decision that it does not correspond to a performance for illegal cause. In accordance with this ruling, the trustor in the bilateral nominal trust can restore the registration of the trusted real estate in the name of the trustee into his/her name, and then the trustee corresponds to a custodian of other’s property and an embezzlement can be established. In the case of the intermediate omission type nominal trust seen above, the ruling that the embezzlement is not established even if the trustee disposes of the trusted real estate arbitrarily is valid, but the ruling that the intermediate omission type nominal trust does not fall under the performance for illegal cause can be said to have faded the meaning of the Act on the Registration of Real Estate Under Actual Titleholder's Name intended to eradicate the nominal trust that undermines the trust of the capitalist economy and reduced the effectiveness of the act to a half. Therefore, in order to secure the effectiveness of the Act on the Registration of Real Estate Under Actual Titleholder's Name and eradicate the nominal trust that undermines the trust of the capitalist economy, nominal trust should be regarded to corresponds to the anti-social order, and the relevant trusted real estate should be regarded as product of a performance for illegal cause, so that the trustor cannot claim the return to the trustee. Therefore, even in the case of a bilateral nominal trust, embezzlement is not established. And contracted nominal trust is not guilted before, after all, no matter what type of nominal trust is made, the guilt of the embezzlement is denied to the trustee who disposed of the trusted real estate.