이중매매에 따른 매도인의 형사책임 -판례를 중심으로-

Abstract

Whether or not the property seller faces the breach of trust due to his double selling of the property will depend on whether the seller constitutes “the person who handles affairs of others” in connection with breach of trust. Judicial precedents hold the view that breach of trust is essentially encroachment on relationship of trust. Thus, requisites for breach of trust should be strictly interpreted, and the involvement of state's punitive rights should be minimized if possible. To date, the Supreme Court has firmly held the position that the seller's double selling of real property, after receiving the intermediate property price installment, constitutes breach of trust. However, recently, in supreme court en banc decision 2008-Do-10479 rendered January 20, 2011, the Supreme Court denied the movable property seller's breach of trust due to his double selling thereof, because the seller, after receiving the intermediate property price installment, does not handle the buyer's affairs, in connection with his relationship with the buyer. Notably, Minority opposition opinion in the relevant decision provides diverse viewpoints and arguments about the purposes and meanings of judicial precedents concerning the double selling of properties, etc., which was not given in-depth review. It also provides an argument that gives a look at the Supreme Court's basic position about the interpretation and application of Criminal Laws and Regulations that regulate private trading. In this regard, the minority opposition opinion is very meaningful. Notably, it is noteworthy whether or not the above decision can change the previous judicial precedents when the establishment of the real property seller's breach of trust is concerned with regard to his double selling thereof.