3자간 등기명의신탁에서 수탁자의 신탁부동산 처분에 대한 수탁자의 부당이득반환의무

The issue of the subject judgment is that, in a tripartite registered title trust, when the title trustee set a right to collateral security to a third party with respect to the real estate in the trust, the title trustor can request the title trustee for the return of unfair profits equivalent to the amount of the secured debt. The above title trust was concluded after the Act On The Registration Of Real Estate Under Actual Titleholder’s Name came into effect. The title trustor suffered a loss corresponding to the right to collateral security but the seller did not suffer any actual loss because he is not liable for damages due to the transfer of the ownership with the established right to collateral security despite receiving the sale price from the title trustor. The title trustor who has a reason for fault by violating the above Act is not allowed to cancel the sales contract to ask the return of the sale price or request for the transfer of the complete ownership under the principle of good faith while the seller can have the sale price pursuant to Article 538, paragraph 1 of the Civil Code. However, this legal principle cannot be applied as it is after the Act On The Registration Of Real Estate Under Actual Titleholder’s Name came into force. Before the above Act came into force, it was necessary to protect the seller who believed that the obligation under the sales contract had been fulfilled because the title trust agreement were considered valid. On the other hand, after the above Act came into force, the fact that the title trust agreement and the resulting transfer of a real right are invalid is clear to the seller. Therefore, it cannot be considered that trust has been formed with the seller that all his obligations under the sales contract have been fulfilled with the transfer of the registration of the title of ownership to the title trustee. Even if such trust has been formed, it is contrary to the mandatory provisions of the above Act and cannot be viewed as a legitimate trust to be protected with the principle of good faith. Therefore, it cannot be concluded that there is no loss to the seller. In addition, the subject judgment reversed the original judgment that cited the title trustor’s request for the return of unfair profits on behalf of the seller. However, since the exercise of the claim right of vicarious compensation is widely acknowledged by precedents regardless of whether there is any reason for fault by the default, even if the seller has no reason for fault by the default and the title trustor has a reason for fault by the default, the title trustor has the claim right for vicarious compensation against the seller and can exercise the claim right for vicarious compensation or the right to claim to compensation for unfair profits against the title trustee regarding the disposal price on behalf of the seller. In addition, the subject judgment’s conclusion seems to pass the risk under the contract concluded by the title trustor with the seller to the title trustee. So far, the consistent attitude of our Supreme Court was that even if the beneficiary has benefits without legal causes, the parties to the contract should take the risks under the contract and should not pass the risk to a third party through a claim for the return of unfair profits. Therefore, this paper opposes the conclusion of the Supreme Court. Meanwhile, there are opinions according to typology regarding the nature of unfair profits against the above subject judgment of the Supreme Court but identifying the establishment of unfair profits or the right to return only in a certain type of frame is thought to be inappropriate. It is hoped that the Supreme Court’s judgment will be reviewed in a new direction in the future.