부동산의 임의처분과 형사처분에 관한 연구

Other than a few legally allowed exceptions, usually in case of real estate trust agreement, trust’s ownership transfers registration becomes invalid according to the Real Estate Real Name Act. Then, can a trustee whose name is on the ownership registration and has sold property against the will of the trust be charged with criminal punishment? To discuss this matter, we need to look at 1) who the actual owners are, 2) positions and rights between trust and trustee, 3) whether the service agreement is written to be legally protected, and 4) whether charge of criminal punishment is reasonable according to the Criminal Law. Recently, in case of real estate trust agreement where middle registration is omitted, the court has ruled out the previous precedents that the trustee has obligations to manage trust’s property and thus can be charged with malpractice. Even in the case of bilateral real estate trust agreement, the bilateral real estate trust agreement is invalid and thus the court cannot maintain the former precedent that acknowledges the position and obligation as the manager of the property. In addition, both precedents and academia agrees that in case of real estate trust agreement, even if the property is sold without consent, she/he is not to be charged with embezzlement because the ownership is usually given to trustees. Therefore, a recent precedent seems reasonable in the means that the ideals are somewhat parallel with that of the Real Estate Real Name Act. Then how about the case of double dealing? There still is a controversy of whether the statement “receiving of remaining balance and ownership transfer should be done at the same time” means no more than contractual obligations or means rights of the third party who has partake in the registration, after receiving down payment and middle payment, Though, a defendant, or a debtor, has agreed to reimburse with his/her inheritance of his/her mother’s property on behalf of the unpaid balance in case he/she cannot pay back the loans, and though has completed the registration, the court has ruled that “the defendant is not in a position of the third party with this specific registration process” and has disapproved his/her charge of malpractice because the court believes above case applies to case of ‘default.’ Moreover, even in the case where a vendor of double dealing is charged with malpractice, the court ruled that other debt payment of movable property, a vendor does not have the obligation to manage nor partake with protection and management of the specific property. Then, how about the case for double dealing of real estate property? Other than different ways of official notice/announcement, common theories and ideals are similar in case of real estate property as well. Thus, interpretation that a vendor of double dealing cannot be charged with malpractice seems reasonable according to the principles of minimized involvement of criminal law in private deals.