명의신탁 관련한 형사법적 쟁점 개관

Overview on the Criminal Issues about Nominal Trust

I think, except some cases that the “Act on the Registration of Real Estate under Actual Titleholder's name”(below abbreviated as ‘Actual Name Law’) allows, the nominal trust agreement is not the trust relationship worthy of being protected by Criminal Law, even though the nominal trust is not Kondiktio wegen verwerflichen Empfanges. And the recent decision(2010do10500) changed the precedents about the non-punishable subsequent act. It held that, if the trustee took out mortgages two times or more from the same real estate under the nominal trust that Actual Name Law allows, the subsequent act could be punished. It means that the subsequent act constitutes the crime of embezzlement and is not absorbed in the preceding act of taking out a mortgage. I agree with the result, but the act of taking our mortages should be assessed as a criminal breach of trust, not as a embezzlement. In the other part, the nominal trust about the movable things were dealt with.