부동산이중매매와 배임죄: 대법원 2018. 5. 17. 선고 2017도4027 판결의 평석

Abstract

In the judgment, the seller can not cancel contract of property once the seller has received the middle payment. Nevertheless, if the seller double-traded the property does occur, it would represent an act of foregoing the responsibility to cooperate in the process of transferring the registration of ownership, which would then be considered a misappropriation. However, questions remain regarding the following: whether applying criminal measures in a civil transaction oversteps the limits of criminal law, whether the seller can assume the legal role of maintaining the other party’s property solely on the grounds that the middle payment had been transferred, and whether subjecting only double dealing to criminal prosecution - while recognizing the need to address this particular issue in order to ensure the integrity of the real estate market - violates the concept of fairness. In the penal code, the term “other person’s work” as required by the criminal offense shall be deemed to be a relationship in which the other person’s work can be done on behalf of another person. Whether the object of sale is property or goods is to fulfill the obligation of contract, it is ‘own affairs’, and even if it is ‘affair’ for some others, it is not ‘affairs of others’ itself. The real property trading is also a contract of goods trading like a goods sales. Therefore, in the case of the transfer of the registration of real property, the obligation of the seller to cooperate with the registration in the case of disclosure for the transfer of ownership from the seller to the buyer is also a civil liability. Therefore, the double real estate sale is merely a default of the seller 's debt to the first buyer, and the obligation to register is not an affair of another person, which is a component of the criminal offense under the penal code. Therefore, the position of the judgment should be reviewed and we expect to change its position in the future.