양도담보목적물의 처분과 형법상 죄책

Abstract

When the Creator of Security Right by Means of Transfer or the Holder of Security Right by Means of Transfer arbitrary disposes of the secured property, views concerning what penal responsibility is assumed on that person have been very diversely and complicatedly unfolding in the academic field of criminal law as well as in civil law. This theses aims to search for countermeasures to meet confusion of the different views, after examining arguments in academic opinions and judicial precedents under the civil law theory and the criminal law theory relating to penal liability against disposal of the secured property. First, a unified legal principles that can be applied on the all types of Security by Means of Transfer should be deliberated legislatively, through putting down various interpretations against the legal nature of Security by Means of Transfer in the civil law theory. It would be desirable to unify all standpoints as to understanding the legal nature of Security by Means of Transfer with adopting the Theory on Real Right of Security, for to understand the legal nature of Security by Means of Transfer with the theory of fiduciary act is not adequate for the current legal system and the theory on real right of security is more appropriate after the Provisional Registration Security Act has been enforced. Second, for a simple nonperformance of an obligation does not commit any crime under the Criminal Act, in order to assess committing the Crime of Breach of Trust, a clear basis must be presented on recognizing one party a duty to cooperate with the work for protection or management of the other party’s property under a footing of confidential relationship between the parties, besides the ordinary duty to perform one’s own affairs as contracted. Third, it is true that the Criminal Act provides side by side the Crime of Embezzlement and the Crime of Breach of Trust in the same Chapter(40th Chapter), moreover in the same Article(Article of 355), but with only different component requisites, as well provides punishment prescribed by law of those two Crimes as same amount and those two Crimes as same nature of the crime on property. However even if so, the relationship between the Crime of Embezzlement and the Crime of Breach of Trust should be grasped as a alternative or optional relation, not understanding it as a special and general relation like hitherto academic opinions. So in the future, a new theory should be developed so as to reflect the above thought. Fourth, the representative legal means of sanction under the Civil Act is compensation for damages, whereas the representative legal means of sanction under the Criminal Act is penal punishment. But, for the means of penal punishment which the Criminal Act uses is the most powerful means among social control measures, the penal punishment under the Criminal Act should intervene exceptionally on the particular occasion where the means of sanction under the Civil Law, the Administrative Law and other Acts no longer operate(the nature of supplementation, the last means of the Criminal Act). If so, hereafter in the light of the above stands, strict and scrupulous reexamination on the component requisites of the Crime of Embezzlement and the Crime of Breach of Trust would be needed.