민사계약에 따른 형사법적 책임- 대법원 2022. 6. 23. 선고 2017도3829 판결을 중심으로 -

Abstract

In the performance of claims and debts in civil contracts, conventional precedents have caused the debtor to be guilty of embezzlement or breach of trust by saying that he is in the position of “a person who keeps property for the creditor” regardless of whether the content is typical or essential. However, in the past decade, the Supreme Court has denied criminal responsibility by changing the previous precedents that a debtor's failure to fulfill his or her obligations constitutes embezzlement or breach of trust. Therefore, in the case of violating cases that are not an essential part of the content of benefits in the relationship between bonds and debts under civil law, the area of criminal responsibility has been greatly reduced. It is considered reasonable in the sense that criminal responsibility should be minimized in the civil domain, and it is also a reasonable conclusion to the principle of supplementation of criminal law. However, the Supreme Court said that the double sale of movable property does not bear criminal guilt, but it was judged that the double sale of real estate with almost the same logic was still guilty of breach of trust by the unanimous decision. Of course, there is no decisive reason to view the double sale of real estate unlike movable property, even if it has some different characteristics from movable property, such as requiring registration for the transfer of ownership of real estate. On the other hand, according to precedents, in the future, in civil bond and debt relations, if a debtor defaults on his or her debt, there will be fewer cases of criminal responsibility, so securing effective rights of creditors may be a problem. Once criminal law, if the debtor does not have the intention or ability to perform according to the details of the benefits, such as setting collateral, a crime of fraud by deception may be established. Civilly, the obligation to pay under the original contract still exists, so the liability for default can still be held, and in the case of collateral establishment, it can guarantee some effective rights by performing it at the same time as the bond is established. However, it is difficult to guarantee completely effective implementation in double trading, which still remains owned by the debtor even in the content of the bond. Therefore, if such a system is still useful, how to supplement it remains a task to be studied in the future.