배임죄가 성립하는 부동산이중매매에 있어서 이익과 손해에 관한 검토 - 대법원 2018. 5. 17. 선고 2017도4027 전원합의체 판결에 대한 비판적 견해 -

Abstract

With regard to the establishment of the breach of trust by double-dealing of real estate, our Supreme Court maintained the previous view by the ruling of the Supreme Court en banc decision 2017Do4027, decided May 17, 2018. As the majority opinion and the dissenting opinion in the said Supreme Court’s decision confronted on whether the seller’s obligation to cooperate in the registration after receiving intermediate payment can be deemed ‘another's business’, and as there have been many prior researches on the issue, there is a possibility for the Supreme Court to change it’s stance by the dissenting opinion in the future. However, regarding the acquisition of pecuniary advantage and the resultant loss which are also important constituent elements of a criminal breach of duty, the said Supreme Court did not provide any specific process to calculate the amounts other than mentioning the elements in relation to the nature of endangerment offences. Also, there are no existing studies directly referring to the calculation. According to previous Supreme Court Decisions, when double dealing of real estate constitutes a criminal breach of duty, the acquisition of pecuniary advantage and the resultant loss are calculated based on the market value of the real estate. Nevertheless, starting from the question of whether the previous interpretation of the Supreme Court decisions is appropriate for the criminal justice system, and considering in various angles such as the concept of profit and damage, the relationship with the protection law interest, the derivation from the existing Supreme Court decisions, and the comparative legal review, in double-dealing of real estate establishing the breach of trust, the acquisition of pecuniary advantage and the resultant loss should be calculated based on the amount paid by the victim, and not the market value of the real estate.