It has been 24 years since 「Act on the Registration of Real Estate under Actual Titleholder’s Name」 came into force. There is no clear content whether title truster can claim the return of trust property or not in the same Act. Therefore, the precedent and the scholars has applied for the legal theory of the property right change and unjust
enrichment. Under the assumption which title trust contract and the property right change are null and void, the majority opinion and the precedent have argued that the ownership of real estate belong to the seller or donor. So, a truster first claims to the trustee to destroy the registration of the trustee’s name on behalf of the seller and claims ownership to transfer the registration of seller to the truster again.
In the recent, it has been assisted that the ownership has to be attributed to the trustee definitively. Because title trust contract is the juristic act against contrary to good morals and social order and the performance and registration recovery for the truster has to be denied.
In this paper, I reviewed and examined the pros and cons of recent scholarly opinion surrounding the precedent of the Supreme Court, focusing on the trilingual registered title trust.
First of all, the purpose of the legislation is to induce registration in the name of the real owner. Especially, Article 4 Clause 2, the third party protection regulation of Article 4 clause 3, penalty regulation of Article 5, compulsory expense to performance of Article 6 are the premise regulations of the registration recovery to the real owner.
It has been interpreted of the reduction related to the concept of illegal of Article 746 in the Civil Act. We can find the historical reason about the interpretation of the concept of illegal. In the Roman law, ‘turpitudo’ is the key word related to the terminology of illegal causes, which can be translated to the level of shame and disgrace in Korean and
recognized in the case of anti-ethical and anti-moral.
It is the purpose of performance for illegal cause that one who participated in illegal acts can not get the legal aid of claim for return of one’s performance. As the goal of it is in the realization of the passive of justice, it has been interpreted considering the interests of the truster and the trustee in the Supreme Court.