｢부동산 실권리자명의등기에 관한 법률｣ 개정을 통한 명의신탁 근절 방안

Section 4 (1) of the ｢ACT ON THE REGISTRATION OF REAL ESTATE UNDER ACTUAL TITLEHOLDER’S NAME｣, which was enacted in 1995, provides that “a trust agreement shall be null and void.” This provision is intended to prevent anti-social behaviour such as real estate speculation, tax evasion, and illegal activities. Nevertheless, the majority opinion and case law in Korea have consistently interpreted the law to protect the interests of the settlor. In particular, the Supreme Court of Korea has ruled in en banc that the settlor may bring unjust enrichment claim against the trustee based upon the invalidity of the trust agreement, and that the settlor's claim based on unjust enrichment does not constitute a perfomrance for illegal cause nder section 746 of the Civil Act. The Supreme Court's interpretation may be criticized for failing to achieve the purpose of ｢ACT ON THE REGISTRATION OF REAL ESTATE UNDER ACTUAL TITLEHOLDER’S NAME｣, which is the elimination of nominee trusts. This is because the eradication of nominee trusts can only be achieved by denying the settlor’s right to exercise the unjust enrichment claim. The Supreme Court's decision may also be attributed to the incompleteness of the current provisions of the ｢ACT ON THE REGISTRATION OF REAL ESTATE UNDER ACTUAL TITLEHOLDER’S NAME｣. To eradicate nominee trusts, I propose the following Amendments to the ｢ACT ON THE REGISTRATION OF REAL ESTATE UNDER ACTUAL TITLEHOLDER’S NAME｣. Section 4 (Effects of Nominee Trust Agreement) ① The nominee trust agreement shall be null and void. In a contract to acquire property rights in real estate, even if one or both parties are aware of the existence of a nominee trust agreement, the contract shall be null and void. ② Any change of title to real property registered under a nominee trust agreement shall be null and void. (delete proviso) ③ The invalidity of paragraphs 1 and 2 shall not be enforceable against third parties. ④ If the trust agreement and the registration thereof are entered into for the purpose of evading taxes, avoiding restrictions under the law, or concealing an offense under the law, the trustee shall not be entitled to exercise claims under section 214 or rights under Articles 741 to 745 of the Civil Act Section 7 (Penalties) ① A person who falls under any of the following subparagraphs shall be punished by imprisonment for up to five years or a fine of up to 200 million won. 1. a settlor who violates section 3 (1) 2. a creditor who violates section 3 (2) and an actual debtor who cause falsely to write down and/or to submit the debtor in a document under the same paragraph ② A nominee trustee who violates section 3 (1) shall be punished by imprisonment for up to three years or a fine up to 100 million won. ③ A bad faith seller who transfers title to a nominee trust in violation of the provisions of section 3 (1) shall be punished by imprisonment for up to three years or a fine up to 100 million won. ADDENDUM This Act shall enter into force one year after the date of its promulgation.