부동산 ‘알박기’ 방지 방안에 관한 형사법적 연구 - 부당이득죄 및 사기죄 성립여부 검토를 중심으로 -

A review of cases in which the offense of unjust enrichment has been applied in connection with real estate holdouts reveals inconsistencies: some cases recognize the offense even when the transaction exceeds the market price significantly, while others do not. Even when cases are categorized into those that affirm the offense and those that reject it, it is difficult to find consistency or legal regularity. This undermines the predictability required for legal application and raises concerns about legal stability. Therefore, it is necessary to revise the current legal provisions on unjust enrichment by distinguishing between unjust enrichment related to real estate transactions and that related to general goods. In particular, the regulation of unjust enrichment in real estate transactions should be legislated with more specific and explicit legal elements, including factors such as the duration of ownership (timing of possession), responsibility for inducing the counterparty’s distressed or desperate situation, and considerations grounded in the constitutional principles of the free market economy. This approach would better ensure legal stability and predictability.