The first case judgment (Supreme Court Dec. 27, 2018. Sentence 2017Da290057 Ruling) and the second case one (Supreme Court Jul. 26. Sentence 2012Da30861 Ruling) decreed about whether the act of remittance is equivalent to donation and about the method...
The first case judgment (Supreme Court Dec. 27, 2018. Sentence 2017Da290057 Ruling) and the second case one (Supreme Court Jul. 26. Sentence 2012Da30861 Ruling) decreed about whether the act of remittance is equivalent to donation and about the method and scope of the restoration to the original state and the burden of proof assuming that the contract for a nominal trust of the depositor’s name corresponds to a deceptive act. The supreme court rulings see to it that the act of remittance cannot correspond to donation, and therefore, that if a remittance to an account of a nominal name should correspond to a donation, a clear will of donation should be admitted, and that the burden of proof should be borne by the creditor who claims for the cancellation of the remittance as a deceptive act. The rulings also suggest that if the remittance should be admitted as a deceptive act to be canceled, the proper method of the restoration to the original state would be the transfer of the nominative claim for the deposit. In case the deposit has been withdrawn from the nominal trust account, the restoration to the original state may well be difficult. Then, the supreme court decreed that the problem would be indemnification of the amount. Thus, the supreme court ruled that the nominal trustee should prove that the trustor had controlled and managed the deposit. Upon reviewing the relevant judicial cases regarding this issue, the confirmation of the depositor in case of nominal trust differ before and after the real-name financial transaction system. Before the system, the actual depositor had been regarded as the real depositor, and after the system, the actual depositor was regarded in principle as the real depositor only when an explicit or implicit agreement was preceded. Later, the supreme court rule would change. The case where the actual depositor could be regarded as the real depositor would be extremely exceptional. As the Real-Name Financial Transaction Act was amended in 2014, the nominal depositors would be assumed as the actual depositor. In contrast, some of the supreme court judges opined in 2009 that as the articles of the Real-Name Financial Transaction Act were compulsory, the agreement of the nominal trust agreement violating them should be invalid according to the Act and Article 103 of Civil Act. The researcher opines that the minority opinion of the supreme court is reasonable. Meanwhile, the courts decreed that the bond transfer should be canceled because it was a deceptive act. But in case a creditor has the bond seized or collected by the court, the other interested parties or ‘the legally interested other parties’ can be entitled to receive dividends on their bonds. On the other hand, unlike the Article 4 of the Real Estate Real-Name Registration Act, no article of the Real-Name Financial Transaction Act stipulates the effects of the deposits in the nominal names. However, if there is an agreement about the trust of account name, the ownership of the account would be clear. The researcher doubts the court ruling that the agreement of the nominal depositor should be canceled as a deceptive act. Under the current Real-Name Financial Transaction Act, the agreement of the nominal depositor should be invalidated, and in such a case, the trustor could not ask the trustee to return the deposit to him or her. Moreover, the agreement of the nominal depositor does not well conform to the system of canceling the deceptive act. The system of seizure or provisional seizure can serve to secure the properties for the repayment of the bonds, while such systems as creditor’s subrogation right or compulsory execution may well be used to have the bonds repaid more conveniently and appropriately. Moreover the supreme court rulings suggest the method of nominative claim transfer for restoration to the original state, but the compensation of the amount would be deemed more appropriate because the trustor had only the m