동산의 이중매매와 배임죄 - 부동산 이중매매와의 비교를 통해서 -

Abstract

Recently Korean Supreme Court gave a judgment(2008Do10479) which the double transaction to the movable property does not comes under Art. 355 paragraph 2 of the Criminal Code, namely Misappropriation. But Korean Superem Court already gave a judgment which the double transaction to the real property comes under Art. 355 paragraph 2 of the Criminal Code, namely Misappropriation. In my opinion, The Superem Court judgment(2008Do10479) have some mistake from the viewpoint of essence and identity of the Misappropriation, Structure of the double transaction. The reason of criticism to the Superem Court judgment are follows. According to the Supreme Court judgment and the majority opinion the essence of the Misappropriation is to break faith with belief of the other side(theory of betrayal). Therefore the application of the theory of betrayal must be done equally to the both the real property and the movable property. 2. The real property and the movable property are same in essential respect. Namely both are thing of the an object of the real right. And claim and preferential effect as real right are equally recognized both at the real property and the movable property. Also Anyone who purchase either the real property or the movable property the expected value to take over the ownership even after he already paid the arrears or halfway money as well the deposit to the seller. And the structure of the double transferor to the movable property is similar with the double transferor to the real property. 3. Only who deal another's affair can be subject of the Misappropriation. Therefore Misappropriation is the crime of real status. According to the Supreme Court judgment, the subjectivity of the Misappropriation is recognized to the double transferor of the real property, but to the double transferor of the movable property. But that is not resonable, because after also seller of the movable property already is paid the arrears or halfway money from the first purchaser, he(she) has the delivery duty of the movable property to the first purchaser. And this duty amount to the another's affair like the duty of the registration cooperation of the seller of the real property. After a thorough study to the Supreme Court judgment(2008Do10479), we think the judgment has no appropriateness. Finally the double transaction to the movable property amounts to the Misappropriation.