부동산 이중매매 매도인의 형사책임에 관한 판례 태도에 대한 비판적 검토

Abstract

There is heated debate over the appropriateness of applying criminal breach of trust in the double selling of real estate in line with the recent change in the attitude of the Supreme Court. Unlike the double selling of movable assets, the Supreme Court acknowledges that criminal breach of trust was committed in the double selling of real estate by recognizing the seller as “a person who administers another’s business” in his/her relationship with the initial buyer. In applying the betrayal theory as to understanding the essence of criminal breach of trust, a seller’s dual sale of real estate is deemed as an act of betraying a buyer’s trust. Furthermore, a seller’s obligation to cooperate in the registration of real estate ownership transfer is regarded not only as another’s business but also the seller’s own business (i.e., cooperating in another person’s preservation of property)󰡈which is a fundamental aspect of real estate transactions󰡈and a seller’s failure to perform such obligation is deemed as establishing the crime of breach of trust: Provided, a seller’s obligation to cooperate takes effect following the initial buyer’s intermediate payment in which the said real estate contract cannot be rescinded. However, the Supreme Court’s position as seen above interpreted “a person who administers another’s business” as “a person administering business for another,” which constitutes as the party committing the crime of breach of trust under the Criminal Act. Such broad interpretation in order to widen the scope of criminal punishment clearly goes against the principle of legality, given that the seller’s obligation to cooperate in the registration of real estate ownership transfer falls under one’s own business and constitutes a business of another person (buyer). Moreover, the seller’s obligation to cooperate and the buyer’s obligation of intermediate payment are to be fulfilled simultaneously, and as such, it goes against logic to deem that the former obligation takes effect after the latter is performed. In addition, such applied attitude may seem that the Supreme Court is taking into consideration the need to protect the buyer’s weak position from a civil procedure standpoint, but is in fact an exercise of punitive authority so as to offset defects of civil relief measures, thereby contradicting 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.” Therefore, the Supreme Court needs to decriminalize dual sales based on stricter interpretation of criminal statutory provisions, rather than deeming a seller to have committed criminal breach of trust in the double selling of real estate (as is the case in the double selling of movable assets).