횡령죄의 불가벌적 사후행위에 관한 판례의 변경

Supreme Court precedents have held that if a title trustee takes out a mortgage on the entrusted real estate in violation of trust relationship (entrustment relationship), it constitutes a crime of embezzlement of real estate. Thus, if a title trustee additionally takes out an additional mortgage or sells it to other person where the aforementioned real estate has not been restored to its original status, it could constitute a separate crime of embezzlement. Nonetheless, Supreme Court precedents so far viewed that such subsequent act is absorbed into the assessment of illegality of a preceding act of taking out a mortgage and thus, it is merely a non-punishable subsequent act. However, such holding is inconsistent with reasonable persons' common sense. A reasonable person thinks that an additional act of taking out a mortgage on the entrusted real estate should also be punished. This article establishes the theory to overrule Supreme Court precedents' position so that in the case like the above situation, a subsequent taking-out of mortgage or a selling act can be punished. The theory can be developed in various ways. One theory may develop itself based on the premise that: a preceding act of taking out a mortgage constitutes a crime of embezzlement; and a subsequent act of taking out a mortgage or selling act also constitutes a crime of embezzlement; and since a crime of embezzlement is an endangerment offense, risks of legal interest infringement can be added until its outcome is completed. Another theory may develop itself as: a preceding act of taking out a mortgage constitutes a crime of breach of trust with property interests as object; a subsequent act of taking out a mortgage or selling act acquires property interests as well; and thus, it is also punishable. Lastly, preceding·subsequent disposal acts can be regarded as one crime in total. This case maintains a preexisting Supreme Court position as well as a majority position in practice which regards the act of taking out a mortgage as embezzlement, and organizes a theory which approaches from the nature of an embezzlement crime as an endangerment offense.