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부동산 명의수탁자의 횡령죄 주체성

Can the Real Estate Title Trustee Embezzle the In-Title Trust-Given Real Estate?

발행
2011
소속·발행
울산대학교
출처
국내 KCI
DOI
10.23102/kaccs.2011.19..008
UCI
G704+INS000002336-ART001568810
원문등록
2011-07-06
원문
원문 보기 ↗
개념
키워드

부동산명의신탁, 명의신탁자, 명의수탁자, 부동산 실권리자명의 등기에 관한 법률, 횡령죄, real estate title trust, title truster, title trustee, Act on the Registration of Real Estate under Actual Titleholder’s Name, embezzlement

초록

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

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