등기명의신탁에서 명의수탁자의 처분행위시 명의신탁자의 법적 지위 - 대법원 2021. 9. 9. 선고 2018다284233 전원합의체판결을 중심으로 -

The subject judgement is about whether the settlor is entitled to directly demand return of unfair profits from the title trustee arising from the kun-mortgage created by the title turstee upon the subject property in a three-party at the types of real estate title trusts. By examining the effect of the contract of for the transfer of the property concluded between the settlor and the seller in a three-party registration title trust, it was examined whether the settlor could transfer the ownership of the subject property to the settlor itself in place of the seller. Both the majorityopinion and the opposing opinion of the subject case considered that the contract concluded beteen the settlor and the seller is valid, but the said contract must be regarded as invalid as it is fundamentally impossible or invalid in violation of Article 103 of the Civil Act. Since the contract between the title settlor and the seller is invalid, the settlor cannot assert the rights under the sale contract against the seller, and cannot claim the registration of transfer of ownership of the trust real estate or exercise the seller’s right to demand the return of unfairly earned profits from the trustee on behalf of the seller. Regarding whether the settlor may directly claim the return of unfair profits against the title trustee, the mafority opinion of the judgment affirms this in terms of fairness based on the theory of unification. However, the concept of fairness is an abstract and ambiguous standard, so there is little room for it to function as a practical standard in cases where unfair advantage is a problem, and there is a risk of expanding the scope of unfair advantage at will by judge. The non-uniformity theory of categorizing and judging unfair gains by type is valid, and in this case, unfair gains from encroachment is the problem. However, in order for unfair encroachment gains is to be established, exclusive interests must be attributed to the right holder, but the settlor does not have any rights to the trust real estate, so he is not in the position of such a right holder. Therefore, the settlor’s demand for the direct return of unfair profits from the trustee should be denied. Therefore, it is the opinion of the author that the dissenting opinion of the subject case appears reasonable.