동산의 이중매매와 배임죄

Abstract

This paper is about supreme court en banc decision 2008Do10479 rendered on January 20, in 2011. The subject decision is the first ruling where the Court concluded that 'breach of trust‘’ is not applied to double selling of real property in principle. The Supreme Court had made it clear that after receiving some proportion of money out of total payment in advance, the criminal method of trust of breach shall be applied to double selling the property to another. At the same time it took the position that breach of trust shall or may apply to double transfer of various types of properties like bond, license or permission. On the contrast to the previous rulings, the subject decision ruled that the seller of movable properties is not the one who is in charge of doing affairs for the buyer of that properties even after the seller received a certain proportion of payment. Therefore breach of trust shall not be applied to the case. The decision is notable as it is against the opinion of majority scholars who argue that breach of trust should applied to the double selling of movable properties as they have similar structure with that of real properties. Especially, the subject decision provides various perspective and logical grounds regarding the meaning and purpose of the decision on the issue with majority opinion and dissenting opinion that run to opposite direction. It also deals with double selling or transfer which have not been seriously discussed. Adding significance to the decision, it also provide prediction on the supreme court’s opinion regarding interpretation and application of criminal law which regulates private transaction. This paper examines whether it is appropriate to differentiate double selling of movable properties to that of real properties, which is one of points at the issue, and deals with the grounds of argument that the supreme court explained to support logic of the decision.