부동산 이중매매가 과연 형사처벌의 대상인가?

• 영문명: Would does Real Estate Double Contract Deserve Criminal Punishment?
• 발행기관: 한국형사정책학회
• 저자명: 박찬걸(Park, Chan-Geol)
• 간행물 정보: 『형사정책』刑事政策 第30卷 第1號, 7~40쪽, 전체 34쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2018.03.30

영문 초록

Considering the basic premise that in case there are civil disputes occurring, it is right to resolve, in principle, them, in accordance with civil codes, but that if only such a method is judged invalid, criminal codes shall be applied exceptionally, protective steps for buyers sales and purchase prices are to be taken by improving such a civil case system. It is possible enough to prevent antisocial behaviors of real estate double contract, in advance, by revising the practice of real estate trade. Nevertheless, using the nation s penal power through the means of prohibition and oppression cannot be considered a valid policy. Especially in the case of statute nation which cannot accept the case law, taking the established precedents as an unchanged truth is extremely dangerous. In the statute nation like South Korea, it is indisputable that case law does not have binding force as the laws and regulations do. Taking it into account, the supreme court must play a role to resolutely revise a case law and improve its contradiction if such a case law is found to have no logical consistence or involve few penalties owing to the complemented institutional or policy system, although such a case law has long been established. It needs to be noted that revising a case law can mean complementing such an institutional or policy system that was not established properly at that time the case law began to be amended. The criminal code association criticizes too much for the logical contradiction of the criteria to be given criminal punishment. Even the judicial body has the greater opinions in favor of such a situation. Given such a stern reality, the judicial body should never delay making a final judgment, considering whether such opinions must be limited by legally persuasive power, and possible social impacts incurred when such opinions are to be accepted. This is a matter to be overcome throughout the whole process the legislative body drafted the related laws and ordinances and the administrative body executes them.

목차

Ⅰ. 문제의 제기

Ⅱ. 이중매도인에 대한 형사처벌의 연원 및 기존 판례의 태도

Ⅲ. 대법원 판례에서 나타나는 형평성의 문제

Ⅳ. 사적 자치의 계약법 영역에 대한 국가형벌권 행사의 기준

Ⅴ. 부동산 이중매매 예방을 위한 형사법 이외의 대안 제시

Ⅵ. 글을 마치며

키워드

배임죄 배신설 부동산 이중매매 타인의 사무를 처리하는 자 부동산매도인 공동신청주의 breach of trust crime theory of betray double selling of movable assets a person who administer another’s business real estate seller joint application for registration