명의신탁 부동산에 대한 수탁자의 임의처분과 형사책임

명의신탁 부동산의 임의처분에 따른 수탁자의 형사책임을 다뤘다.

The current Real Name Real Estate Act only allows special provisions for name trusts under the names of servants, spouses, and religious organizations, while other real estate name trusts are prohibited, invalidating both name trust agreements and transfer registrations, and criminalizing trust activities. Until now, even if the trustee disposes of discretionary dispositions in real estate name trusts, the Supreme Court has been affirming the establishment of embezzlement crimes before and after the enactment of the Real Name Real Estate Act in 1995. However, recently, the types of name trusts have not been separately classified, and all deny the establishment of embezzlement.

And going one step further, it takes the position of negative theory that there is no crime of breach. Here, in the case of prohibited title trusts, the current Real Name Real Estate Act not only provides for punishing the title trust itself, but also may bear civil liability for damages. If so, it is quite questionable whether there is a need to be protected or protected through punishment for embezzlement or breach of trust under the criminal law, and it seems undesirable to protect it under the general criminal law. This is because even though there is a possibility of civil legal relief, using the strongest punishment among sanctions alone can go against the principle of supplementality.

In fact, along with the recent discussion on the abolition of the breach of trust, it can be understood that the Supreme Court precedent leaves the field of civil law in the direction of acknowledging civil tort liability or unfair benefit return liability while denying criminal responsibility. While the direction of the breach of trust currently under discussion is being revised from the abolition discussion, the Supreme Court precedent still maintains the establishment of breach of trust in the double sale of real estate.

However, if the rights insurance system is used to the fullest, it is judged that it is enough to treat it as a civil issue rather than criminal punishment, so we expect a change in the Supreme Court precedent.