부동산계약명의신탁에서 신탁자의 점유는 자주점유인가(?) - 대상판결: 대법원 2022. 5. 12. 선고 2019다249428 판결 -

The judgment at issue judged that the presumption of proprietary possession was overturned on the grounds that the nominal trustor could not file a claim for transfer of ownership against the owner in a contractual trust case after the enforcement of Act on the Registration of Real Estate under Actual Titleholder’s Name(hierafter Act on the Registration of Real Estate). Unlike foreign legislation, Article 245 (1) of Korean Civil Code(hierafter KCC) fully affirms the possibility of an occupational acquisitive prescription for registered real estate, so it is necessary to limit the scope of its application through teleological reduction interpretation of Article 197 (1) of KCC from the perspective of ownership guarantee and registration principle. In that respect, the attitude of the judgment, which paid attention to the possibility of acquisition of ownership by trustor in a contractual trust case after the enforcement of Act on the Registration of Real Estate and overturned the presumption of proprietary possession, is reasonable. The possibility of acquisition of ownership is not limited to a contract, but also includes unjust enrichment. Prior to the enforcement of Act on the Registration of Real Estate, the contract title trust should be examined separately by the seller according to whether the contract title trust agreement is in good faith or in bad faith. In the case of good faith, the nominal trustor can claim the transfer of ownership registration against trustee by way of Restitution based on unjust enrichment according to the precedent, so it should be considered that the presumption of proprietary possession is maintained as it is. It is difficult to see that proprietary possession is converted to possession by another party due to the enforcement of Act on the Registration of Real Estate. This is because it is difficult to see the possession by trustor as anti-social in light of the legislative intent of Act on the Registration of Real Estate, and it is difficult to see that the statute of limitations for acquisition of possession is fundamentally blocked. Even if the trustor commences possession after the enforcement of Act on the Registration of Real Estate, it is difficult to see that the presumption of proprietary possession is overturned. This is because the trustor can claim the transfer of ownership registration due to unjust enrichment according to the precedent. It is difficult to see that proprietary possession is converted to possession by another party simply because the statute of limitations for the claim for return of unjust enrichment by the nominal trustor has been completed. This is because the extinctive prescription for the claim for return of unjust enrichment and the acquisitive prescription for nominal trust have different institutional intents, so it cannot be seen that the latter is denied due to the former. If the trustee insists on the completion of the extinctive prescription of the right to claim the return of unfair gains, the trustor's possession is converted to non-proprietary possession. because if the nominal trustee insists on the completion of the extinctive prescription, the possibility of acquiring ownership of trustor is lost. In the case of bad faith, the presumption of proprietary possession is overturned because the trustor has no possibility of acquiring ownership of the real estate against the seller or the trustee.