배임죄에서 신임관계의 희석가능성과 사전 손해전보조치의 효과 -대법원 2020. 5. 14. 선고 2019도16228 판결 등에 대한 평석

Abstract

Recently, the Supreme Court of Korea judged a criminal breach of trust case, 2019Do16228. It was basically a simple case of real property double sale, except for a little but important twist. In a typical case of double sale, one who already sold a real property sells the very same property again to another person, even though he has no right to rescind the first contract of sale. Korean courts have firmly established that real property double sale constitutes breach of trust under the Korean Criminal Code(KCC) § 355 (2), recognizing the first purchaser as the victim. In 2019Do16228, however, at the time when the accused double sold the real property, there had already been a provisional registration for ownership under the name of the first purchaser in the register of the real property. The Supreme Court of Korea reversed and remanded the original “not guilty” decision of the Seoul High Court, ruling that the provisional registration did not alter “the typical/essential element of trust relationship” between the accused and the first purchaser. The reason was that the provisional registration did not transfer any real rights, and was merely “a measure to compensate later in case of loss suffered by the first purchaser.” Hence, the accused was still a subject of breach of trust, namely “a person […] administering another’s business” prescribed under KCC § 355 (2). In later proceeding, the accused and the defense counsel still pled not guilty, arguing that due to the provisional registration, “pecuniary loss” - another element of breach of trust prescribed under KCC § 355 (2) - never occurred to the first purchaser. The Seoul High Court rejected the argument, ruling that “from an economic perspective” the accused should be found to cause pecuniary loss to the first purchaser in spite of the provisional registration. Every recent commentary on 2019Do16228 merely states that the decision is an acknowledgement of the precedents, which have been well-established by courts yet open to criticisms from academia. Nevertheless, the decision presents two very crucial problems related to breach of trust, which have never been discussed before: ① Could a trust relationship be “diluted” after its establishment? In the specific case of 2019Do16228, could the provisional registration relieve the accused from being a person administering another’s business with respect to the first purchaser? ② Could an “ex ante compensation measure” such as the provisional registration made prior to the double sale in the case of 2019Do16228, prevent pecuniary loss from occurring, and hence be a valid defense against breach of trust charges? This article illuminates and critically analyzes these two problems, which are inherent in various typical breach of trust cases, rather than being limited to real property double sale.