배임죄 성립에 있어 동산과 부동산 사이의 차이문제

• 영문명: The difference between movable and immovable property in punishment for breach of trust
• 발행기관: 한국형사법학회
• 저자명: 손동권(Son, Dong-Kwun)
• 간행물 정보: 『형사법연구』형사법연구 제25권 제4호, 303~324쪽, 전체 21쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2013.12.31

영문 초록

On 20. January 2011, Korean Supreme Court gave a decision that double sale of personal property is not guilty of breach of trust in Article 355 Paragraph 2 of the Criminal Code(2008Do10479). This decision in the case of movable property is different from the precedents of double sale cases of real property. Personal property is generally considered private property that is movable – any property that can be moved from one location to another. This term is in distinction with immovable property or immovables, such as land and buildings. According to the § 355 (2) of Criminal Code, a person who, administering another's affairs, obtains pecuniary advantage or causes a third person to do so from another in violation of ones duty, thereby causes loss to such person, shall be punished by imprisonment for not more than five years or by a fine not exceeding fifteen million won. The majority opinion in the judgment states that the delivery obligation of seller is not another’s affairs which shall be administrated by the seller under article 355 paragraph 2 of the Criminal Code, but is his own affairs. It is a very difficult matter how to interpret the meaning of “a person administering another's affairs" in the article 355 paragraph 2. This matter is caused by the reason that Korea takes the formality principle in transfer of ownership both in the real and movable property. For example, a person who registers first get the ownership, not the one who contracts first, in the real property. There are a lot of disputes about the decision of Supreme Court that made a difference between movable and real property. On 25. June 2004, Korean Supreme Court gave another decision that sale of movable property, which is an object of double establishment of security by means of transfer, is also not guilty of breach of trust in Article 355 Paragraph 2 of the Criminal Code(2004Do1751). It is same in this case that the debtor is not "a person administering another's affairs," namely affairs of the second right holder in double establishment of security by means of transfer, in the article 355 paragraph 2. This study has critical position about the two decisions of Supreme Court mentioned before. Double sale of movable property should be ruled with breach of trust in the same way as in the real property. The seller of movable property for double establishment of security by means of transfer should take responsibility for breach of trust to the second right holder in the same way as to the first right holder.

목차

Ⅰ. 연구판례와 문제점의 제시

Ⅱ. 이중매매의 배임죄 성립에 있어 동산ㆍ부동산 사이의 차이문제: [연구판례 (1)]의 평석

Ⅲ. 이중 양도담보물 임의 처분의 배임죄 성립에 있어 동산ㆍ부동산 사이의 차이 문제

Ⅳ. 맺는 말

참고문헌

Abstract

키워드

배임죄 타인의 사무 동산 부동산 이중매매 양도담보 breach of trust personal property(movable property) immovable property(real property real estate) double sale security by means of transfer