부동산실명법위반과 형법의 적용

Act on the Registration of Real Estate Under Actual Titleholder’s Name and the Criminal Act have different roles. Act on the Registration of Real Estate Under Actual Titleholder’s Name pursues to achieve the administrative purpose of restoring registered names to the trustee. The fact that the Real Name Real Estate Act stipulates a penalty surcharge and compulsory payment for title trust acts is for the direct purpose of restoring the title to the actual right holder, and that individual title trust cases without illegal purposes such as tax evasion should not be protected under criminal law. Article 355 (1) of the Criminal Act only refers to the property of others, and does not separate movable property, real estate, automobiles, construction machinery, ships, and aircraft. In the case of automobiles, construction machinery, ships, and aircraft, whether the crime of embezzlement has been established is judged based on the status of de facto control rather than registration. In the case of real estate due to the Real Name Real Estate Act, the main argument of the Supreme Court judgment on the application of the crime of embezzlement is that the legal relationship of a title trust is not worth protecting under the Criminal Act because it violates the Real Real Name Act. However, the role of criminal law lies in the protection of private property itself. Therefore, the concept of ownership in the Criminal Act must be independently grasped based on the status of real or legal control independent of real estate registration. If it is based on the concept of independent ownership of the Criminal Act, even in the case of a real estate title trust in violation of the Real Name Act, it will be possible to decide whether to apply the crime of embezzlement based on the independent judgment of the Criminal Act. If a fine is chosen as a criminal punishment for violating the Act on the Registration of Real Estate Under Actual Titleholder’s Name, there is a risk of fines and double punishment. It is necessary to delete the criminal punishment provisions of the Act on the Registration of Real Estate Under Actual Titleholder’s Name. It is desirable to solve the problem by applying the Criminal Act only in the case of title trusts that have been carried out for illegal purposes such as tax evasion through an investigation process. Other than that, I think that it is better to pursue only the achievement of administrative objectives with the compulsory performance and Administrative fines.