실명거래위반행위와 불법원인급여

A study on a transaction under a false name and whether it falls into a 'transfer of property for illegal purpose' category

영문초록

「Act of Real name Financial Transactions and Guarantee of Secrecy」(hereinafter RNFT) and 「Act of Registration of Real Estate under Actual Titleholder's Name」(hereinafter RRES) prohibits transactions which are carried out by a false/borrowed name(hereinafter TRFN). The main reason for the regulation is that such transactions contribute to tax evasion, speculation in real estate, evasion of enforcement of law and concealment of slush funds.

It's been a quite long time since those Acts have taken effect, however, we can easily observe a contract by a false/borrowed name, and it doesn't seem to be wiped out in the foreseeable or distant future. In such cases, we encounter a problem whether it belongs to a 'transfer of property for illegal purpose' category, when a person demands his property should be restored claiming that those contracting names are borrowed. It is very important that we establish a right viewpoint, 'cause upon that depends whether he can restore his property or not.

This article will check out those provisions, will review relevant court decisions, and finally verify the Supreme Court's Decision that rules a TRFN is not fall into a 'transfer of property for illegal purpose' category.

By the way, there are some district court decisions which states explicitly “TRFN belongs to a 'transfer of property for illegal purpose' category” or some cases rejected as “the court can't believe what plaintiff contends and there's no evidence to back up his assertion”. At this point, this article needs to sharpen it's rhetoric that none of this attitude is acceptable, and this is very much of a question because it amounts only to misunderstanding of RNFT and RRES.

And finally, this article will acknowledge that it is impossible to eliminate TRFNs thoroughly, and the court needs to fully understand social malady that in the face of prohibition, such transactions do exist and will exist. And in these context it is important the court protect each party's legal status concerning TRFN, because any TRFN -as far as RNFT and RRES are concerned- is not belongs to a 'transfer of property for illegal purpose' category.