명의신탁받은 자동차의 처분과 재산죄의 성부

With the advent of new civilization due to the development of science and technology, the distinction of traditional objects of civil law, that is, the distinction between movable property and real estate based on mobility, has also been threatened and changed. The emergence of aircraft, construction machinery, and vehicle, and the social need to utilize them as a creditor, pose a unique realm that can not be solved in the conventional division of the law of reality. On the other hand, there is a registration system for these objects. The vehicle, which is a representative example of such a thing, is traditionally a mobile movable property, but the individual regulation of the Automobile Accident Compensation Security Law. adopts the disclosure system about the timing of the change of the real estate. Therefore, a car can be understood as a special property which is treated like real estate by requiring registration. In this way, the recognition of the legal specificity of the property of the vehicle causes the problem of the title trust agreement that the owner and the title trustee are different due to the registration system. Here, the civil legal relationship has morphological similarity with the title trust of the real estate. However, there are differences in the reality of the transaction and the liability to govern the operation under the Automobile Accident Compensation Security Law. Therefore, it is possible to apply the legal effect of the real estate title trust in analogy. If a trustee arbitrarily disposes of a car to a third party under the trust agreement of the vehicle, the criminal legal relationship will eventually be based on the civil law relationship in the real estate title trust. In this case, occupation of the legal status recognized by the custodian shall take precedence over the actual occupation of the owner. It is desirable to interpret it to be faithful to the concept of possession of embezzlement. Therefore, a fiduciary who arbitrarily disposes of vehicle is punishable as an embezzlement, not a theft. Furthermore, in connection with the establishment of a fraudulent offense against a third party, it is impossible to deny a third party the right to acquire ownership of the third party and to cause deceptive conduct that would cause a disruption to the transaction. Therefore, it is reasonable to deny the fraud.