Under article 4 section 3 of Act on the Registration of Real Estate under Actual Titleholder's Name, the Real Estate Title Trustee can transfer validly the ownership of the in-title trust-given real estate from himself to a third person. Though section 1, 2 of this article provide the title trust agreement and the transfer of a real right to real estate (based on this agreement) shall be void, this act gives section 3 superiority over section 1, 2 to protect the right of a third person.From these provisions we can know that the title trustee becomes the custodian of the title truster's real estate in relation to a third person and is able to embezzle the in-title trust-given real estate. Therefore, if the title trustee does with the in-title trust-given real estate as he pleases, he embezzles the real estate of the title truster. The vendor is paid the price in full, and the duty of the vendor is regarded as fulfilled by article 4 section 3 of this act. So the vendor is never a victim.In this case(2009Do4501) the Supreme Court judges Gap(甲) didn't embezzle the property of Eul(乙). But it is proper that title trust between Gap(甲) and Eul(乙) is considered a kind of title trust between two persons, and Gap(甲) is judged to have embezzled the property of Eul(乙).

[대상판결] 대법원 2009. 9. 10. 선고 2009도4501 판결1
  1. 사실관계
  2. 소송경과
  3. 대법원의 판단
 [연 구]
  Ⅰ. 문제의 제기
  Ⅱ. 명의수탁자의 형사책임에 대한 학설과 판례
  Ⅲ. 부동산실명법과 명의신탁
  Ⅳ. 새로운 관점에 따른 명의수탁자의 형사책임의 이해
  Ⅴ. 대상판결의 사안 분석
  Ⅵ. 맺음말
  [참고문헌]
  [Abstract]

• 이창섭(울산대학교 사회과학부 조교수, 법학박사) | Lee, Chang-Sup