상호명의신탁관계에서의 형사책임에 대한 판례연구

• 영문명: A Case Review on the Criminal Responsibility in the Co-title Trust Relationship
• 발행기관: 한국형사판례연구회
• 저자명: 이상한(Lee, Sang-Han)
• 간행물 정보: 『형사판례연구』형사판례연구 제26권, 225~251쪽, 전체 27쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2018.06.30

영문 초록

It often happens that after someone purchases a specific part in one parcel of land, a shared equity registration is made according to the area ratio of the specific part in the whole land, and this legal relation is called co-ownership of divided ownership. This is substantially sole ownership of the relevant party on the inside and takes the form of “co-ownership registration” on the outside, but Korean precedents solve this problem by the so-called co-title trust principle by citing the legal principle of title trust. Therefore, in the relation of co-ownership of divided ownership, each co-owner can dispose of his or her specific division part independently and freely transfer the corresponding shared equity registration. However, if a land is divided into independent parcels by specific division parts owned separately, our precedents consider that the shared equity registration of the co-owner name transferred to each remaining parcel other than the parcel corresponding to each specific division part can no longer be regarded as a registration to represent a parcel corresponding to a particular division part of the co-owner, and only the co-title trust relation between the co-owners will survive. Thus, each co-owner is in the position of a person keeping the shared equity in relation to the other co-owners with respect to the shared equity of his or her name transferred over each remaining parcel, and if he or she disposes of it, an embezzlement is established. But it is doubtful whether a shared equity can be regarded as a property of embezzlement in the “person who keeps other’s property” among constitutional elements of embezzlement. Shared quity, which is a quantitative part held by a co-owner, is an idea that can govern things, and it is problematic to regard it as a property. Therefore, even though Korean precedents acknowledge embezzlement in this case, it is reasonable to regard it as a breach of trust rather than embezzlement.

목차

[대상판결] 대법원 2014. 12. 24. 선고 2011도11084 판결

[연구]

Ⅰ. 문제의 제기

Ⅱ. 구분소유적 공유관계의 법률관계

Ⅲ. 구분소유적 공유관계의 공유자의 근저당설정행위에 대한 형사책임

Ⅳ. 결론

키워드

구분소유적 공유관계 상호명의신탁 횡령죄 배임죄 공유지분 Co-ownership representing de facto partition ownership another mutual name trust relation Embezzlement Breach of Trust Portion in co-ownership