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학술논문형사판례연구2010.06 발행KCI 피인용 16

횡령한 부동산에 대한 횡령죄의 성립 여부

김대웅(서울중앙지방법원)

18권, 146~173쪽

초록

In case that a consignee who had pledged a mortgage over the realty under consignment agreement, places the same realty under the mortgage again or sells it to the 3rd party, the first mortgage constitutes an embezzlement. Then, can the second mortgage or the sales in the above transaction can constitute another embezzlement ?The Supreme Court ruling regards the second mortgage or sales in the forementioned example as unpunishable post-activities,which accordingly cannot constitute an embezzlement again. However, as the second action satisfies all the requirements of an embezzlement, it seems more appropriate to constitute additional embezzlement for the post-activity separate from the first. Such reasoning would prevent unreasonable outcomes where the second action requiring more severe punishment than the first action could avoid punishment.

Abstract

In case that a consignee who had pledged a mortgage over the realty under consignment agreement, places the same realty under the mortgage again or sells it to the 3rd party, the first mortgage constitutes an embezzlement. Then, can the second mortgage or the sales in the above transaction can constitute another embezzlement ?The Supreme Court ruling regards the second mortgage or sales in the forementioned example as unpunishable post-activities,which accordingly cannot constitute an embezzlement again. However, as the second action satisfies all the requirements of an embezzlement, it seems more appropriate to constitute additional embezzlement for the post-activity separate from the first. Such reasoning would prevent unreasonable outcomes where the second action requiring more severe punishment than the first action could avoid punishment.

발행기관:
한국형사판례연구회
DOI:
http://dx.doi.org/10.23102/kaccs.2010.18..005
분류:
형사정책

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횡령한 부동산에 대한 횡령죄의 성립 여부 | 형사판례연구 2010 | AskLaw | 애스크로 AI