부동산 이중매도자의 형사책임 (Criminal Responsibility for Real-Property Double-Selling)

서지정보

· 발행기관 : 중앙대학교 법학연구원
· 수록지 정보 : 法學論文集 / 32권 / 1호 / 97 ~ 122페이지
· 저자명 : 김태수

초록

Real-property double-selling is the case that a seller sells a real property twice to each different buyer. Nonetheless, if one side contract of a double selling practice of real-property is void, it would not be taken as double selling. In contrast, if a contract has a cancellation cause, the contract would be valid if a party holding cancellation power does not use the power. Therefore, even though double-selling can stand with cancellation cause, the argument for double-selling looses power after a party cancels a contract retroactively. Contrarily, because, even when there is a cancellation cause in a buyer's side, the contracts is valid until the buyer uses cancellation power, the contracts can be considered as double-selling
Our courts have considered the practice of real-property double-selling as a type of misappropriation. Nonetheless, an act of misappropriation shall be punished as a criminal act only when a person who takes care of another person's business breaches trust. The concept of another person's business can be divided into two categories, such as a business for another person and a business of another person. The criminal responsibility of misappropriation should be placed on a practice of double selling only for a business of another person. If not, every single contracting party can be considered to be a person who is doing a business for another person and then may have possibility to take criminal responsibility based on a guilt of misappropriation. In addition, a duty to cooperatively transfer names on a real-property register is a business for another person, but not a business of another person. It is because a register should be done in concert by both parties even though a seller took earnest money, part payment and the rest. A duty to cooperatively transfer names on a real-property register is not exhaustively a buyer's business but should be considered as a business of a seller as well as a business for a buyer. Therefore, it is not justifiable to punish a person who makes double-selling of real-property.

영어초록

Real-property double-selling is the case that a seller sells a real property twice to each different buyer. Nonetheless, if one side contract of a double selling practice of real-property is void, it would not be taken as double selling. In contrast, if a contract has a cancellation cause, the contract would be valid if a party holding cancellation power does not use the power. Therefore, even though double-selling can stand with cancellation cause, the argument for double-selling looses power after a party cancels a contract retroactively. Contrarily, because, even when there is a cancellation cause in a buyer's side, the contracts is valid until the buyer uses cancellation power, the contracts can be considered as double-selling
Our courts have considered the practice of real-property double-selling as a type of misappropriation. Nonetheless, an act of misappropriation shall be punished as a criminal act only when a person who takes care of another person's business breaches trust. The concept of another person's business can be divided into two categories, such as a business for another person and a business of another person. The criminal responsibility of misappropriation should be placed on a practice of double selling only for a business of another person. If not, every single contracting party can be considered to be a person who is doing a business for another person and then may have possibility to take criminal responsibility based on a guilt of misappropriation. In addition, a duty to cooperatively transfer names on a real-property register is a business for another person, but not a business of another person. It is because a register should be done in concert by both parties even though a seller took earnest money, part payment and the rest. A duty to cooperatively transfer names on a real-property register is not exhaustively a buyer's business but should be considered as a business of a seller as well as a business for a buyer. Therefore, it is not justifiable to punish a person who makes double-selling of real-property.

참고자료

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