법경제학의 시각에서 바라본 부동산 이중매매의 형사처벌

Interpretation of criminal statute is regulated by the principle of strict interpretation, which is a sub-principle of “nullum crimen, nulla poena sine lege”. However, there sometimes exists possibility of policy-based decisionmaking in construing criminal statutes. Policy-based decisionmaking operates in the context of purposive interpretation or constitutional interpretation. Concretely, a judge determines whether it is proportional to punish a specific conduct which falls under the criminal statute with vague or ambiguous conception on the first appearance. In this proportionality analysis, law and economics approach can play a useful role, especially when the criminal statute regulates economic activities. In this paper, I analysed the recent decision from the Supreme Court which upheld its long-standing precedents criminalizing double sale of real estate. While it is positive that the Court is trying to justify its judgement with diverse approach including law and economics, there are two problems in the analysis of the Court. First, the concept of “efficient breach”is not exactly understood by the Court. Second, the majority opinion fails to persuade that the criminalisation of double sale is the only way to enforce property rule between the first buyer and the seller.