대향적 거래관계에서 배임죄 주체의 해석에 대한 형법 및 형사정책적 함의 – 유기천 교수의 ‘부진정부작위범의 작위의무론’에 착안하여 –

Abstract

The crime of breach of trust has received a lot of criticism in the meantime in relation to the interpretation of the subject, 'a person who administers other’s business'. This criticism has been particularly focused on transactions under civil and commercial law. The majority of theories and precedents that take the theory of betrayal of the nature of the crime of breach of trust expand the meaning of 'other’s business' beyond the meaning specified in the law and interpret them as 'businesses for others'. For instance, in the double sales contracts of real estate, the obligor’s disposal of movable asset transferred for security, double mortgage of real estate the Supreme Court does an enlarged analysis that include ‘the duty to cooperate to preserve the property interests of others’ in other’s business. However, recently, the Supreme Court seems to accept the above criticism by giving a limited interpretation of the concept and scope of the subject of breach of trust crime through a series of enacted rulings in relation to the scope of the subject of breach of trust in transactions. I reviewed whether this change in judgment is a fundamental change in the past interpretation theory. In this article, I conducted a theoretical review of the changes in the Supreme Court ruling through a historical and comparative legal interpretation of the subject of the crime of breach of trust. As a result, I confirmed that this change in the Supreme Court precedent has the meaning of fundamentally changing the direction from discussions focused on ‘others in business’ in transaction relationships to discussions on 'main contract' and ‘typical and essential’ content in trust relationships. On the other hand, criminal policy review was conducted to see if distrust in the legal order and vacuum in punishment arise due to these changes in Supreme Court precedents. It was demonstrated that almost all cases can be punished as a crime of obstruction exercise of right, and that in the case of double mortgage of real estate, it can be punished as a crime of fraud depending on the case. Therefore, it seems that the social confusion or infringement of public legal sentiment due to the limited interpretation of the scope of application of the subject of breach of trust in the transaction relationship is not very large.