금지되는 명의신탁 부동산의 처분행위와 관련한 형사책임

Disposition of Limited Name Trust Real Estate Related Criminal Liability

Real estate name trust is limited by 'Act on The Registration Of Real Estate Under Actual Titleholder’s Name' except for real estate on title registration under a third party's name. If someone do the limited real estate name trust, it will be punished by 'Act on The Registration Of Real Estate Under Actual Titleholder’s Name'. Nevertheless, if a bailee sell name trust real estate, there is a problem to punish them by embezzlement and breach of trust. The Supreme Court' leading case and majority' opinion are it is possible. But real estate name trust is illegality. Accordingly, embezzlement is not a custodian. And it is not admitted as a business conductor. The purpose of 'Act on The Registration Of Real Estate Under Actual Titleholder’s Name' is to contribute to the sound development of the national economy through the prevention of antisocial actions, such as speculation, evasion of taxes and acts circumventing laws, etc. which abuse the real estate registration system and to strive to normalize real estate transactions and stabilize real estate prices by having any ownership and other real rights to the real estate registered under the names of those having the actual rights so as to conform to the substantial relation of rights. To get these goal, Criminal punishment about bailee is wrong to protect truster. So, it can be punished by embezzlement and breach of trust.