부동산 명의수탁자의 횡령죄 주체성

Abstract

Under article 4 section 3 of Act on the Registration of Real Estate under Actual Titleholder's Name, the Real Estate Title Trustee can transfer validly the ownership of the in-title trust-given real estate from himself to a third person. Though section 1, 2 of this article provide the title trust agreement and the transfer of a real right to real estate (based on this agreement) shall be void, this act gives section 3 superiority over section 1, 2 to protect the right of a third person. From these provisions we can know that the title trustee becomes the custodian of the title truster's real estate in relation to a third person and is able to embezzle the in-title trust-given real estate. Therefore, if the title trustee does with the in-title trust-given real estate as he pleases, he embezzles the real estate of the title truster. The vendor is paid the price in full, and the duty of the vendor is regarded as fulfilled by article 4 section 3 of this act. So the vendor is never a victim. In this case(2009Do4501) the Supreme Court judges Gap(甲) didn't embezzle the property of Eul(乙). But it is proper that title trust between Gap(甲) and Eul(乙) is considered a kind of title trust between two persons, and Gap(甲) is judged to have embezzled the property of Eul(乙).