부동산실명법 제4조에서 명의수탁자의 지위의 형법해석상 문제와 개정방향 - 대법원 2010. 9. 30. 선고 2010도8556 판결을 중심으로 -

Abstract

The Real Estate Real Name Registration Act states that anyone cannot register a real right of real estate in title trustee's name according to contract of title trust, and the contract is invalid. However, there are not any provisions about the ownership of the real estate. This is why there are lots of controversies over the criminal liability of title trustee who disposed the real estate. Court ruled that the title trustee are charge with embezzlement, excluding the case a seller has good faith in the contract of title trust. This is unfavorable to the accused. Thus, the title truster should be punished by malpractice except in the case of the title trust of two parties and a seller having good faith. Embezzlement and malpractice have differences in the burden of proof and the application of Additional Punishment Law Article 3. Furthermore, embezzlement and malpractice have to be distinguished because receiving stolenproperty cannot be established where there are problems of profit from property. More fundamental matter is legislation policy of The Real Estate Real Name Registration Act Article 4. Where the uniformity of law and order is emphasized, the real estate of title trust might be belonged to title trustee according to Civil Law article 746. Otherwise, if the identity of criminal law is emphasized, the title trustee could be charge of criminal liability. This means just one side of the two objects should not be emphasized. Thus, narrowing the gap between criminal law and civil law is important. For the countermeasure, the revision of Civil Law or Real Estate Real Name Registration Act and Criminal Law. As criminal liability of the person having the right of mortgage of transfer as well as title truster have same problem, just revision of Civil Law is not proper way. In this respect, I suggest 1. to provide making the ownership of trusted real estate belonged to title trustee in the Real Estate Real Name Registration Act 2. to provide making the ownership of trusted real estate belonged to title truster in the Real Estate Real Name Registration Act 3. to revise Criminal Law Article 355 Clause 1 changing ‘property’ to ‘movable assets’Among the three solutions, the first one is not proper way in that title trustee cannot be punished despite the duty of trust. The second one is the same because the conflict surrounding the establishment of embezzlement and malpractice would be endless matter. Therefore, the third one is the best in that it could not only solve the conflict problems about the concept of ‘property’ and ‘profit from property’ but also make malpractice applicable which is favorable to the defendant.