부동산명의신탁과 재산권의 인정 - 대상판결 : 서울지방법원 2003. 11. 28 제20 민사부 2003가합49028 -

Fluctuations in Realty Titular Trust and Real Right

The registration of realty relates to the entry of rights about certain real estate and fluctuations in reality in a register book in accordance with a certain form. Its purpose is to inform the public of the possession of realty relatively more valuable than movable estate so that the security of transaction and the protection of private property may be realized. Originally the holders of realty can decide on whether they will register it or not, which has led to many illegitimate activities such as the evasion of taxes including the real property acquisition tax and a transfer income tax, etc. With a view to keeping this from happening, the special measure act on realty(No. 4244 August 1st, 1990) was enacted, which made it obligatory to register the contract statement with a seal of approval from mayors and county governors within 60 days after the acquisition of realty and which made sure that negligence fines are imposed upon those who fail to stick to it. It is registration based on titular trust that doesn't accord with its substantial relationship. This kind of titular trust registration has been approved through judicial precedents only in Korea. Realty titular trust is based on the relationship where the trustee acts as a nominal holder on the register and the truster is still regarded as a holder holding real estate in the relation between the truster and the trustee. Contrary to the real purport of nominal trust, malicious persons frequently exploit this system as a means of a slip from the grip of the law such as the evasion of taxes including inheritance tax, illegal donation of real estate to their offspring, the purchase of farmland by non-farmers under the name of farmers, the avoidance of distrain and property registry by public servants, or the avoidance of tax inspection. These acts run counter to the law and are nullified. And an agreement of titular trust becomes null. So do fluctuations in a real riight. The violators shall be fined and punished. This study works on the general issues of taday's realty titular trust, covering the future application of the law and its problems.