부동산 명의신탁에 있어서의 형사책임에 관한 비판적 재고 - 형법상의 횡령죄와 배임죄를 중심으로 -

It has been twenty years since the title trust agreement and the transfer of ownership was enforced to be invalid as a result of the real-name property ownership law enacted. Nevertheless the heated debate about criminal responsibility in which a title trustee arbitrarily sells a trusted real property is now going on. According to the judicial precedent, the title trustee conforms to embezzlement crime same as before in the case of 2-party registry title trust and in the case of 3-party registry title trust. In contrast the title trustee conforms to not guilty in the case of 3-party contract title trust to the other side recent times. Theory cannot see the agreement of opinion, as are showing the aspect which is confused between the embezzlement opinion and breach of trust opinion and not guilty opinion by type of title trust. In this paper, it has been reappraised the discussion until now and suggested problem point and critical point of theory and judicial precedent. As a result, I drew the following conclusion. The title trust is currently not trust for illegal cause on the interpretation of the real-name property ownership law, therefore it saw, to be difficult in about crime formation yes or no it brings about big change in criminal law interpretation theory, that from all types the crime is formed in the trustee when considering the unity of legal system and requirement for criminal punishment. Also in the case of 3-party contract title trust, it’s improper that whether the title trustee’s disposal consists of crime or not depends on the cognition of vender. I also disagree on, while it is admitting embezzlement in the case of 2-party registry title trust and 3-party registry title trust, it is judging with innocence on invalidity of title trust agreement only in the case of 3-party contract title trust, like judicial precedent. Because, in all types, actual trust relationship in the embezzlement and breach of trust is applied equally on the trust agreement between the truster and the trustee. As a result, as it were in type of the title trust, in the case of 2-party registry title trust, the title trustee’s disposal of real estate confirms to embezzlement as before. Also in the case of 3-party registry title trust, the title trustee’s disposal of real estate confirms to embezzlement of the registry title truster because he is actual owner. And in the case of 3-party contract title trust when the vender is bona fide, the trustee does not conforms to embezzlement but to breach of trust because the ownership is transferred to the trustee. Finally, in the case of 3-party contract title trust when the vender is ill-intended, as I see it, the title trustee conforms to breach of trust against the truster because the ownership of real estate still belongs to the vender but he doesn’t have the trust relationship, and the truster is not owner of real estate in any sense.