불법원인급여 적용기준에 대한 소고

Abstract

「Act on the Registration of Real Estate under Actual Titleholder's Name」 stipulates that, in principle, the legal effect of a real estate title trust is invalid. The act prescribes that the legal effect is only valid when it is applied for specific reasons (tax evasion, evasion of compulsory execution, or evasion of legal restrictions) between certain parties (family, spouse, and religious organization). In other words, a title trust for the purpose of tax evasion, evasion of compulsory execution, or evasion of legal restrictions is always null and void.
 The Supreme Court rejected the application of Article 746 of 「the Civil Act」 through the decision of a full-scale consensus on June 20, 2019, so that the real estate in a real estate title trust should belong to the title trustor, and the resolution of related issues is the realm of legislative theory, not the realm of interpretation of the law. However, the opinion that Article 746 of 「the Civil Act」 should be applied to a real estate title trust under 「Act on the Registration of Real Estate under Actual Titleholder's Name」 is also argued.
 Considering the circumstances of the enactment of 「Act on the Registration of Real Estate under Actual Titleholder's Name」, the relationship between 「Act on the Registration of Real Estate under Actual Titleholder's Name」 and 「Act on Special Measures for Real Estate Registration」, and the commentary published immediately after the enactment of 「Act on the Registration of Real Estate under Actual Titleholder's Name」, I can’t agree the decision that the legislator intended the ownership of a real estate title trust should belong to the trustor.
 Article 746 of 「Civil Act」 is a special rule of the Unjust Enrichment(Article 741 of 「Civil Act」). Therefore, it is not necessary to exclude the application of performance for illegal cause to all real estate transactions in the form of title trusts, but to examine whether or not each transaction is performed with illegal cause. In addition, it is available that the Supreme Court interpreters whether or not performance for illegal cause applies under 「Act on the Registration of Real Estate under Actual Titleholder's Name」.