부동산실명법의 해석 및 개정에 관한 소고 -명의신탁 근절의 관점에서-

Real estate trusts originated as a means of protecting property during the Japanese colonial period but have since been exploited for antisocial purposes such as speculation, tax evasion, and avoiding compulsory execution. Even after the enactment of the ACT on Registration of Real Estate under Actual Titleholder's Name, name-based trusts persist. This is largely because the Supreme Court, while recognizing their illegality, has allowed trustees to reclaim ownership or proceeds, effectively permitting their economic recovery. To address this, two approaches are needed. First, courts should actively apply the doctrine of unjust enrichment based on an illegal cause (Civil Code Article 746) to block restitution claims by trustees. Second, if judicial change is difficult, legislative reform must prevent trustees from recovering any economic benefit. Key proposed amendments to the Act include: Clearly stating that trustees may not assert any claims, such as ownership transfer. Changing penalty calculations to use actual transaction prices and raising the rate to 50% to deter trusts. Repealing Article 8, which allows exceptions for spouses, family associations, and religious organizations, as it creates loopholes. Ultimately, the goal of the Act is to eliminate antisocial real estate transactions through name-based trusts. This requires both legal interpretation and legislative reform to fully block economic returns to trustees, ensuring transparency and reducing speculative demand.