명의신탁의 반사회성 판단기준 - 대법원 2016. 5. 19. 선고 2014도6992 전원합의체 판결을 중심으로 -

Abstract

A trust relationship between two or more persons is available when a full legal power is transferred to the trust taker in trust by the settlor. In relation to third parties (external relationship) can complete transfer of the right of ownership of such a thing take place. Thus the recipient and administrator of the matter in an external, depending on the configuration of the trust, the full legal status of owner. The fiduciary relationship can a legal transaction (for example by a contract) or as other legal relationship (for example, the Trust) designed. On the configuration of the Trust (including title transfer, authorization, authorization, etc.) received by the Trustee more or less rights and obligations transferred by the trustor. According to the transfer of rights and obligations to the trust taker who settlor loses this his legal position. The embezzlement is the most common dedication crime in the Criminal Code. According to § 355 paragraph 1 of the Criminal Code is an offense who a strange thing appropriating unlawfully. The embezzlement recognized as property crime - as distinct from the fraud (§347 Penal Code) or for extortion (§350 StGB) - no financial loss advance. Rather completely worthless movables can be suppressed as long as they are just strange, that are not the sole property of the offender and not abandoned. Unlike the theft (§329 Penal Code) is not necessary that the perpetrator breaks custody. There is no (longer) required that the offender offense was committed, the matter already in custody. By washing away the custody requirement the Tatvollendung is far displaced forward. An attempt is conceivable only with disabled objects. Also omitted from the law Wording on any relationship of the perpetrator to the point. The concept of dedication should therefore be restricted by the requirement of obtaining individually owned. The embezzlement is thus collecting offense of property offenses. Thus fulfilled any offender who commits a theft or robbery, always also a misappropriation.