중간생략등기 명의신탁에서 명의수탁자의 처분에 따른 부당이득 관계 - 대법원 2021. 9. 9. 선고 2018다284233 전원합의체 판결 -

The judgment at issue concerned, in a Title trust omission of intermediate transferee registration, the question of who suffered damage when the nominal trustee disposed of the title trust immovable property to a third party and thereby obtained proceeds or other benefits. The majority opinion, maintaining the Korean Supreme Court’s established position, held that the title trustor had suffered damage, whereas the dissenting opinion concluded that the seller had suffered damage. The author, however, advancing the view that the seller is the party who suffered damage as a result of the nominal trustee’s act of disposition, critiques both the majority and dissenting opinions. The critique could be recapitulated as follows. First of all, in a Title trust omission of intermediate transferee registration, the sale contract is valid. If, by means of a supplementary interpretation of contracts, it can be ascertained that the parties intended the title trustor to acquire ownership of the property, an agreement to register title in the nominal trustee’s name does not affect the sale contract’s essential consensus. Although it is regrettable that the judgment under review upheld the contract’s validity without examining the parties’ intent, its conclusion is nonetheless acceptable. Secondly, the fault in forming a Title trust omission of intermediate transferee registration must be distinguished from the fault relating to the nominal trustee’s discretionary disposition of the property to a third party. To extend or impute the fault for forming the title trust in violation of Act On The Registration Of Real Estate Under Actual Titleholder’s Name to the trustee’s subsequent disposition risks producing unjust results in the liquidation of legal relations arising therefrom. Since neither opinion in the judgment under review drew this distinction, their reasoning is difficult to endorse. Thirdly, According to the dissenting opinion, since the title truster retains the procedural avenue of asserting the claim for conveyance directly against the seller, or exercising such right by way of subrogation, the dissenting view cannot be regarded as providing a final and efficient resolution of the dispute. Nevertheless, in a Title trust omission of the intermediate registration, the exclusive and direct interest infringed by the disposition of the trustee lies in the seller’s ownership right. As the majority opinion runs counter to the general principles of contract law, the dissenting view is well-founded, whereas the majority opinion is untenable.