부동산이중매매에 있어서 배임죄 적용 결과 민사법질서에 미치는 부정적 영향

When the 2nd buyer in the double transaction gets the title first by registration before the 1st one can get the title, then the second buyer can get the perfect ownership of the real property. Since Korea takes the form principle in the real property, one who registers first can get the ownership of real property, not the one who contracts first. Even though the 1st buyer cannot get the title, he can recover the damages from the seller. Since the contract guarantees not the ownership itself of the subject of the contract but the economic benefit of that contract, recovering damages is good enough for the 1st buyer. It is an acceptable situation. In the reality, however, the 2nd buyer cannot always win just because he gets the title first in Korea. Owing to applying the criminal method of “breach of trust” into the double transaction, the 1st buyer who doesn't register yet has the odds to become a winner just because he contracts first. Many scholars and courts argued that the 1st buyer who paid at least 2nd installment should be protected against other later buyers. They think the 1st buyer should be protected because a seller has the duty to execute a contract after he gets 2nd installment. Therefore, the 1st buyer should get the title of the real property which is the subject of the contract. They also argue that criminal method, such as “breach of trust” should be added to protect the 1st buyer when the seller fails to fulfill his duty. I wonder why the 1st buyer should be protected so strongly in comparison to other competitors just because he contracts first given the form principle in real property area. If Korea takes the form principle in real property area, then we should keep continuity in this real property transaction. Moreover, if we apply a criminal method of breach of trust into the double transaction of the civil area, many adverse effects may appear. 1) Breaching the balance between seller and buyer. 2) Too much extension of the “trust of breach” of criminal method 3) Inconsistent effect of applying the “trust of breach” of criminal method upon the double transaction of real property When the contract is made, the balance is also made between seller and buyer. If other factors such as criminal methods are added to the contract, then the delicate balance can be tipped over. The policy of “trust of breach” of criminal method is originally to regulate the abuse of authority of the certain licensees or people who are empowered. It should not be overly expanded into the general area. If they argue that the reason why "breach of trust" should be applied into the double transaction is to punish a buyer who betrays the duty to execute the contract, then all of double transaction related persons should be punished by Criminal Act. However, they apply breach of trust only to a small portion of double transactions, i.e. only to protect the 1st buyer. I think applying the criminal method of “breach of trust” into the civil law area, especially the double transaction of real property, should be stopped now and let the civil law system work by itself.