배임죄의 본질에 관한 소고(小考)

Abstract

The essence of a breach of trust should consist in breaching the inner confidential relationship. But this position includes a danger of considering a mere default as a crime. Such a danger must be excluded by the strict interpretation of “a man who manages another person’s affairs”. A real estate seller becomes a man who manages another person's affairs when he receives a contract deposit and a intermediate payment from a real estate buyer. If a real estate in question is registered in buyer's name, it comes into buyer's hands. The Real Property Registration Act provides that a joint application for registration should be made by a seller and a buyer all. An application for registration is an cooperative affairs of a seller and a buyer, so it is an another person's affairs, that is to say, a buyer's affairs in a seller's place. If the seller who received a contract deposit and a intermediate payment breaches the inner confidential relationship and sells the real estate in question to a third person, he can be punished with a breach of trust. A movable property buyer is to become an owner of a movable property without the formalities of registration, and a movable property seller cannot be a man who manages another person's affairs. Even though the movable property seller who received a contract deposit and a intermediate payment breaches the inner confidential relationship and sells the movable property in question to a third person, he cannot be punished with a breach of trust. The Supreme Court has the same view as this article(2008Do10479).