부동산 이중매매에 있어서 배임죄의 성립 여부에 관한 고찰

In most real estate transactions in Korea, it is a reality that there is no legal guarantee that the purchaser acquires ownership of the target real estate intact even though he or she has paid a considerable amount of the purchase price. A real estate double sale is not a simple default, but a tort under criminal law that creates a risk of damage to the buyer's property by not fulfilling the buyer's obligation to cooperate in preserving the buyer's property. Nevertheless, the principle of private autonomy and the principle of subsidiarity of the criminal law are so emphasized that the criminal law's illegal acts are transferred to the civil realm of contract default or debt default, which is tantamount to giving up the function of the criminal law to protect legal interests. In order to protect property rights, which are important legal interests, in what cases real estate double sellers are required to cooperate in registration and recognize the status of ‘one who handles other people's affairs’, it can be clarified through interpretation theory and precedents, and punished for breach of trust. Judging based on the characteristics of the legal relationship in order to limit the range of possible acts is rather to harmonize the entire legal system. In conclusion, from the stage of receiving the interim payment from the first buyer, the real estate seller assumes the ‘duty to cooperate in registration’ in the position of ‘person handling other people’s affairs’. Therefore, the double sale of real estate by the seller constitutes a breach of trust as an act in violation of these obligations.