중간생략형 부동산명의신탁과 횡령죄 - 대상판결: 대법원 2016. 5. 19. 선고 2014도6992 전원합의체 판결 -

For the trustee’s act of disposal in middle omitting type title trust punished as conventional embezzlement, the target ruling Korean Supreme Court on the Case 2016. 5. 19. 2014DO6992 ruling discarded the conventional attitude and changed its position to innocent based on the following: ① if a title trustee cannot be regarded as ‘Those who keep the wealth of others’ mentioned in the components of embezzlement in relation to the title truster, ruling embezzlement by asserting the need for a criminal penalty runs counter to the principle of legality forming the basis of the principles of a constitutional state and principle of analogical interpretation prohibition of criminal laws and ordinances derived from it, ② applying a criminal penalty to the title trustee is not reasonable because it causes the result contrary to the legislative purpose by protecting the title truster who violated the prohibition norms determined by the Real Estate Real Name Registration Act by criminal law and rather maintaining and promoting the title trust relationship prohibited and punished by Real Estate Real Name Registration Act and it is difficult to acknowledge the need for criminal penalty in this regard, ③ compared with the contract title trust, embezzlement punishment destroys the legal stability and does not fit the law feelings of the general public ④ Supreme Court has ruled that title trustee’s act of arbitrary disposal of trust real estate does not constitute both embezzlement and misappropriation in the contract title trust issue violating the Real Estate Real Name Registration Act and middle omitting type title trust and seller’s blackhearted contract title trust have something in common and even legal experts have difficulty in distinguishing them and in this situation, continuing to punish only middle omitting type title trust as embezzlement without any criminal sanctions in contract title trust issues destroys the legal stability and does not fit the law feelings of the general public. Thus, only bilateral title trust is still punished as embezzlement but in the case of well-intentioned contract title trust, blackhearted contract title trust, middle omitting type title trust, the trustee’s act of disposal is not a criminal activity any longer. The author is to support the Supreme Court’s position before the target ruling in that the ownership concept as benefit and protection of the law protected by a criminal law should be private property itself as a system with condensed wisdom of universal humanity rather than being the ownership concept with registration determined in the Civil Code as its requirement for establishment and evaluating a deliberate infringement thereof as an offense criminal is faithful to the original function of the Criminal Law. Civil ownership requires registration as its requirement for establishment but registration only performs external disclosure function not the actual ownership and therefore, the author thinks that the Criminal Law needs to consider actual or de facto ownership concept present regardless of registration- this is established by the local tax law, the Public Servant's Ethics and case law. The author thinks that the administrative law administratively regulating the phenomenon itself nonclaiming registration under the person’s name and Criminal Law which should perform the duties of private property protection by the state may exist and function in the different levels. The author also thinks that punishment by the Administrative Criminal Law should basically premise the evaluation in the Criminal Law. The benefit and protection of the law of embezzlement are “ownership legal right on property on wealth”, individual legal benefit. Rather than protecting formal ownership, embezzlement is to protect private ownership and it may include protection for actual or de facto ownership. What is invalidated by the Real Estate Real Name Registration Act is the title trust agreement between the truster and trustee and the registration not a sales contract made between the seller and trustee. By subrogating ownership transfer registration claim of the seller for the trustee based on a sales contract with the seller, the truster can finish transfer registration under the name of the seller and obtain transfer registration with the cause of the sales contract between the seller and truster back to himself/herself. It is difficult to conclude that this legal status cannot be protected by the Criminal Law at all. There may be a case that not only the legislative intent of the Real Estate Real Name Registration Act but the status of the truster damaged by the trustee’s act of disposal should be considered and it is necessary to punish the specific act of trustee who promoted self-interest and infringed the interests of the truster criminally. What should be noted in Criminal Law is not the certainty of registration title for ensuring the authenticity of the transaction, who is a registration title holder in the Real Property Registration Act. Subjective situation about who is recognized as the true owner between the offender and victim, unlawful act itself, benefit or legal status to be protected by Criminal Law, a fundamental law of criminal sanction should be focused. Therefore, rather than hastily reaching a conclusion that embezzlement is not constituted for the trustee’s act of disposal in middle omitting type title trust based on the Real Estate Real Name Registration Act, the author think that systematic approach to benefit and protection of the law of embezzlement and substantial·de facto ownership should be also fully considered.