형사법상 부동산 이중매매 매도인의 지위에 관한 논의의 검토

Abstract

The most of criminal jurists are understanding the essence of the beach crime of trust in view of the betrayal theory. And they identify “business of himself for the others” with “business of others for the others” in the interpretation of “a person who administers another's business”. However, they argue that the vender’s obligation to cooperate in the registration of real estate ownership transfer is another’s business as well as his own business, and the vender’s breach of obligation to cooperate in the registration of real estate is the infringement of buyer’s expectation (or trust) for the real right of the object when buyer makes a intermediate payment. For these reasons, they argue a vender in the double selling of real estate is a person who administers another's business. The vender’s obligation to cooperate in the registration of real estate is vender’s own business, not first buyer’s business, but it is just business for first buyer. The vender’s infringement of obligation to cooperate in the registration of real estate is nothing but default on a monetary debt of civil case. Therefore, I think that their opinions are based on taking into consideration the need to protect the buyer’s weak position from a civil procedure standpoint. However their opinions contradict with the demand for “demoralization of criminal law” as well as the demand for principles of subsidiarity or ultima ratio in criminal law due to “criminalization of civil cases.” The principle of legality(Grundsatz nullum crimen, nulla poena sine lege) is one of the most important principles in the criminal law. Therefore the interpretation of the criminal statutory provisions must be done strictly in the possible meanings of the letter of the law. According to this principle, it is right to interpret that the vender in the double selling of real estate is not the subject of the breach crime of trust(the Criminal Act Art. 355 Para. 2).