계약명의신탁에서 명의신탁자 점유의 자주점유 여부

Abstract

The decision overturns the presumption that the nominal trustor's possession in a contract nominal trust is the one with the intent to own. The basis for the judgment is that the nominal trustor not only does not have ownership of the real estate, but is also not a party to the contract, so he/she cannot request the owner to transfer ownership registration, and that the nominal trustor is well aware of this fact. However, the author believes that even in the case of a contract nominal trust, the nominal trustor's possession should be presumed to be the one with the intention of ownership. The reason for this is as follows. First, the intention to own in possession refers to the purpose to actually exercise exclusive control as the owner is capable of. It is difficult to deny the nominal trustor's intention to own as a natural and factual intent. Second, the Supreme Court determines whether the intent to possess exists is determined not only by the nature of the title but also by ʻall circumstances related to possession.ʼ If the intention to possess has been expressed to the owner, it is recognized that the possession is converted to the one with the intention of ownership. If the nominal trustor expresses the owner's intention to the legal owner, the possession can be considered to have been transferred, so it is reasonable to regard the nominal trustor's possession as the one with the intention of ownership based on ʻall circumstances related to possession.ʼ Third, since contract nominal trust and tripartite nominal trust are not clearly distinguished, there is no reason to treat the nominal trustor's possession differently in the two types of nominal trusts. Fourth, it is difficult to say that there is a need to protect the seller or nominal trustee, who is the legal owner, while denying the acquisitive prescription of the nominal trustor in a contract nominal trust.