전세사기와 채무불이행의 구별 - 변제의사 또는 변제능력, 신의칙상 고지의무를 중심으로

Recently, as large-scale jeonse fraud has emerged as a major social issue, there is an increasing demand for stronger criminal penalties. However, given the unique characteristics of the jeonse system such as customary “no-capital gap investments” and the practice of repaying previous tenants’ deposits with funds received from new tenants distinguishing malicious fraud from simple breach of contract remains a challenging task in legal practice. While case law requires the specification of deceptive conduct and proof of fraudulent intent to differentiate the two, it remains unclear whether “intent to repay” should be identified with fraudulent intent itself and how the content of deception should be specified in complex cases. To distinguish jeonse fraud from breach of contract, this study first defines jeonse fraud as the act of defrauding tenants of their deposits, emphasizing its status as a criminal law concept and excluding loan fraud. Subsequently, jeonse fraud is classified into “typical/individual fraud” and “structural fraud” (further divided into “lack of intent to repay” and “loss of ability to repay”) based on the method and content of deception to analyze the legal issues inherent in each type. Next, the study examines the concepts of “intent to repay” and “ability to repay”. It argues that intent to repay is a fact concerning inner volition, while ability to repay is a judgment regarding future feasibility of performance, making them independent contents of deception at different levels. Specifically, the study advocates for the “Deceptive Content Theory”, which treats both as elements of the actus reus distinct from fraudulent intent (mens rea). Furthermore, it proposes the “Parallel Theory”, viewing ability to repay not as subordinate to intent to repay, but as a separate and independent subject of judgment. Additionally, the study reviews the functions and limitations of the doctrine regarding the duty to disclose under the principle of good faith, which is extensively applied in practice, and derives restrictive principles to reasonably delimit its scope. In particular, it proposes the objectification of criteria for determining the existence of the duty to disclose, a phased approach to specifying deceptive conduct, and the concretization of the legal grounds for the emergence of such duty. Finally, the study presents concrete indicators for distinguishing jeonse fraud from breach of contract. Receipt of kickbacks and the transfer of ownership to insolvent nominees in “simultaneous transaction” structures serve as markers of fraud with definite intent, while entering into contracts after the point of irrecoverable financial collapse constitutes fraud with dolus eventualis. Conversely, cases involving small-scale leases where collateral value was sufficient at the time of contract, or where impossibility of performance resulted from unforeseeable market fluctuations, should be excluded from criminal punishment. It is expected that the criteria proposed in this study will serve as a rational standard based on the principle of legality to identify and strictly punish malicious fraudsters while preventing the indiscriminate expansion of criminal liability.