배임죄 성립에 있어 동산과 부동산 사이의 차이문제

Abstract

On 20. January 2011, Korean Supreme Court gave a decision that double sale of personal property is not guilty of breach of trust in Article 355 Paragraph 2 of the Criminal Code(2008Do10479). This decision in the case of movable property is different from the precedents of double sale cases of real property. Personal property is generally considered private property that is movable – any property that can be moved from one location to another. This term is in distinction with immovable property or immovables, such as land and buildings. According to the § 355 (2) of Criminal Code, a person who, administering another's affairs, obtains pecuniary advantage or causes a third person to do so from another in violation of ones duty, thereby causes loss to such person, shall be punished by imprisonment for not more than five years or by a fine not exceeding fifteen million won. The majority opinion in the judgment states that the delivery obligation of seller is not another’s affairs which shall be administrated by the seller under article 355 paragraph 2 of the Criminal Code, but is his own affairs. It is a very difficult matter how to interpret the meaning of "a person administering another's affairs" in the article 355 paragraph 2. This matter is caused by the reason that Korea takes the formality principle in transfer of ownership both in the real and movable property. For example, a person who registers first get the ownership, not the one who contracts first, in the real property. There are a lot of disputes about the decision of Supreme Court that made a difference between movable and real property. On 25. June 2004, Korean Supreme Court gave another decision that sale of movable property, which is an object of double establishment of security by means of transfer, is also not guilty of breach of trust in Article 355 Paragraph 2 of the Criminal Code(2004Do1751). It is same in this case that the debtor is not "a person administering another's affairs," namely affairs of the second right holder in double establishment of security by means of transfer, in the article 355 paragraph 2. This study has critical position about the two decisions of Supreme Court mentioned before. Double sale of movable property should be ruled with breach of trust in the same way as in the real property. The seller of movable property for double establishment of security by means of transfer should take responsibility for breach of trust to the second right holder in the same way as to the first right holder.