배임죄의 불법과 치역(値域) －대법원 2011. 1. 20. 선고 2008도10479 전원합의체판결－

January 20, 2011, Supreme Court of Korea decided that double sale of movable property is not a crime. The majority opinion states that the delivery obligation of movable property of vendor is not another’s affairs administrated by vendor, but affairs(business) of vendor himself. This decision will be a significant case about the boundary between crime and contractual obligation. But in the minority opinion, if the vendor had signed the contract of property sale and had taken the down payment and the part payment, he entered into the phase at which he cannot cancel the contract freely, so his contractual obligation should be regarded as another’s(vendee’s) affairs administrated by vendor. So double sale of movable property confirms to the breach of trust. It means that the vendor takes the unallowable benefits with bringing about the remarkable and serious danger to the vendee accompanied by his violation of obligation. The minority opinion is not of the meaning of ‘administrating another’s affairs of Article 355②in Criminal Act. It is of the legal evaluation that the vendor’s act of double sale should be punished because of its social harm and its illegality. Here, we must distinguish the meaning of criminal action and the evaluation of the crime. The former is called as the domain of concept, the latter is called as the range of concept in functional concept theory of logistic. For example, homicide has two conceptual dimensions, one is a domain of homicide; “the killing of a human being by a human being”. The other is a range of homicide, that is “social harmfulness,blameworthiness of that wrongful results, conduct, attendant circumstances, etc.” The domain and range of concepts have functional correspondence. In Frege’s analysis, y = f(x), values of x constitutes domain, values of y constitute range. The illegality and culpability of homicide are the range of homicide, which corresponds functionally to each element in the domain of homicide. Thus, if we introduce the domain and the range of the crime, we can find that the majority opinion is on the domain of ‘another’s affairs’ in the breach of trust, and the minority opinion is on the range of it. The majority opinion of this decision on the domain of ‘another’s affairs’ concept will be judge-made law. But the minority opinion of this decision on the range of breach of trust will bring about more results, because its approach may contribute to the establishment of the illegality concept of breach of trust. The illegality of breach of trust is realizing the unallowable benefits with the remarkable and serious danger accompanied by his violation of obligation.