부동산 명의신탁자의 부당이득반환청구권에 관한 비판적 검토 -대법원 판례를 중심으로-

In Korea, nominal trusts have been theoretically developed through Supreme Court decisions despite the fact that they have no basis in statute. An nominal trust is a system that violates the one-thing-to-one-right in rem that is the foundation of Korean Civil Act, goes against the essence of ownership by separating ownership into internal and external ownership, directly contradicts Article 186 of the Civil Act on the transfer of ownership over real property, and hinders the clear disclosure function of the real property registration system, therefore, is unacceptable. However, Supreme Court of Korea has consistently upheld the validity of nominal trust arrangements. Nominal trusts have been abused as a means of real estate speculation, tax evasion, and evasion of law, which has led to a surge in real estate prices. In response, the National Assembly of the Republic Assembly enacted the ACT on Special Measures for The Registration of Real Estate of 1992 and the Act on the Registration of Real Estate Under the Actual Titleholder’s Name of 1995 to prohibit nominal trusts. However, it is believed that the Supreme Court of Korea has continued to apply the case law decided prior to the enactment of the Act on the Registration of Real Estate Under The Actual Titleholder's Name of 1995, even after the enactment of the Act. Therefore, the Supreme Court of Korea has ruled that the provisions of Article 4 of the Act on the Registration of Real Estate Under the Actual Titleholder’s Name is invalid only for the nominal trusts agreement, and for the transfer of ownership of property rights under the trust agreement, therefore, that the trustor may exercise the right of unjust enrichment against the trustee. The Court also held that a nominal trustor's claim for disgorgement of unjust enrichment does not constitute performance for illegal cause under Article 746 of the Civil Act. This attitude of the Supreme Court is inconsistent with the purpose of the Act on the Registration of Real Estate Under the Actual Titleholder’s Name, which is to eradicate nominal trusts. Because the Act on the Registration of Real Estate Under the Actual Titleholder's Name was enacted to stamp out nominal trusts, nominal Trusts should be considered juristic acts contrary to social order. We believe that the invalidity of Article 4 of the Act on the Registration of Real Estate Under the Actual Titleholder's Name should be interpreted in accordance with the special provisions of Article 103 of the Civil Act, which provides for the invalidity of juristic acts that violate good morals and other social order. Therefore, the nominee trustee's claim for disgorgement of unjust enrichment against the nominal trustee would constitute an unlawful source benefit under Article 746 of the Civil Act and the nominal trustee's claim for disgorgement should be denied. The year 2025 marks the 30th anniversary of the Act on the Registration of Real Estate Under the Actual Titleholder's Name. In view of the fact that trusts for real property speculation, tax evasion and evasion of law continue to occur even after the enactment of the Act on the Registration of Real Estate Under the Actual Titleholder's Name, it is necessary to establish a case law theory that meets the purpose of the Act on the Registration of Real Estate Under the Actual Titleholder's Name.