배임죄 처벌과 관련한 형법이론적 논의 — 부동산 이중매도 쟁점을 중심으로 —

There are various criticisms about the position of the recent Supreme Court ruling(2017do4027), which considers the double sale of real estate as a crime of breach of trust. Therefore, it is judged that the theoretical value to discuss this is sufficient in consideration of the differences and specificities of the issues related to the double sale of real estate from other property crimes. This paper examines the issue of breach of trust in terms of theoretical discussions on reducing the punishment of breach of trust based on recent precedents on double selling of real estate. This is because the theorem itself is considered a meaningful study in a situation where theories and precedents have been sharply opposed from various perspectives. In particular, while claiming that double selling of real estate can be viewed as a crime of breach, it approached by systematically organizing or criticizing various claims of existing papers and discussing what views are the problem and alternatives or other interpretation methods. Limitation of punishment is an important issue and a grand principle of criminal law. However, in relation to real estate crimes, exceptions to these principles are also necessary. Because real estate crimes are usually significantly different from movable property and other property crimes, and should be treated differently from general property crimes due to the specificity of being managed by the state through registration, etc. Therefore, in this paper, the goal of presenting an argument that goes beyond the argument of negativity from the standpoint of positive theory and presenting an alternative regarding the establishment of a crime of breach of trust in breach of trust.