不動産名義信託중 소위 ‘契約名義信託’의 법률관계

Legal Aspects of Contract Title Trust in Dealing with Real Estate Title Trusts

The enforcement of “Act on the Registration of Real Estate under Actual Titleholder s Name” aims to reorganize the contents of the Real Estate Registration to have any ownership and other real rights to the real estate registered under the names of those having the actual rights. However, in specific cases, it is very important to identify the nature of the Title Trust Agreement in question, to make distinction between a Register Title Trust and a Contract Title Trust. That is why the rules and regulations vary according to the nature of the Title Trust Agreement. To identify the nature of a Title Trust Agreement, we need to find which the relevant parties to the sales contract are. In other words, if we regard the title truster as an actual party to the sales contract, then it would be a Register Title Trust, whereas if we regard the title trustee as an actual party to the sales contract it would be a Contract Title Trust. In this case record, its texts suggest a standard for identifying the actual parties to a contract, specifying that unless there are other special reasons, the person whose name is listed on the vendee section of the sales contact document should be the actual party to a sales contract. In other words, the case states that if the title trustee is the one listed in the sales contract and titleholder according to the Real Estate Register, then he should be regarded as the actual party of the sales contract. If an ownership transfers to registration by means of Title Trust Agreement prior to the effectuation of this act, the registration is considered null and void, prior to the registration in effect. However, this is not an appropriate method of interpretation of the act. Rather, such registration must be considered void only after the grace period specified in the article 11, clause 1 of the law has elapsed. Also, a Title Trust Agreement cannot be considered as a ground for any change in the real rights to any real estate. Accordingly, claims for invalidity on the change in the real rights to real estate on the basis of the invalidity of Title Trust Agreement are unreasonable. Moreover, a real estate sales contract under the Title Trust Agreement disguised within should be considered invalid, at least for such a contract signed after the effectuation of this act since the contract would be aiming to achieve a default. Given the purpose of this act which aims to eradicate the practice of title trust agreements in dealing with real estatesit seems more desirable and logical to bar the title truster from acquiring the real rights to real estate purchased by means of title trust agreement. This leads to the conclusion that such basic stance must be maintained in interpretateing the individual provisions of this act.