부동산 공매에서 절차적 공정성 확보를 위한 형사법적 고려사항 - 부동산 공매절차에서 인위적 부정거래를 중심으로 -

Ensuring procedural fairness is essential for maintaining online and offline auction procedures. Therefore, our criminal law protects the fairness of auctions and bidding through crimes such as obstruction of auction bidding (Article 315 of the Criminal Act) and fraud (Article 347 of the Criminal Act). However, are online auctions and public sales truly safe, given the system developers' promotional efforts and various information security certifications? From a technical perspective, the system may be secure and protected from external intrusions. The problem is that procedural fairness can be undermined in numerous cases by those utilizing secure systems like OnBid. This includes cases of obstruction through false lien filings, submission of false lease agreements, and even repeated fraudulent bidding, which defaces the auction process. These violations of procedural fairness also apply to public auctions. Therefore, this study examines whether procedural fairness, a key element for the sustainability of the public auction system, is being maintained from a criminal law perspective, using specific recent cases. First, we examine the criminal liability for cases of "highest bid" or "coercive sales" occurring in real estate auctions. Specifically, we consider two factors: i) If a bid is awarded below the market price, it inflicts damage on the company (KAMCO), raising the issue of breach of trust. However, given the recent social debate surrounding the abolition of the crime of breach of trust, we examine whether the abolition of the crime could create a legislative vacuum for "highest bid" (coercive sales) in real estate auctions. Second, we examine two factors: ii) If a bid is awarded above the market price, the bidder is exempt from liability for breach of trust against the company (KAMCO), but incurs economic losses for the successful bidder, thereby undermining the procedural fairness of the auction process. The problem is that in such cases, the existence of fraud and obstruction of auction bidding will be an issue. Fraud and obstruction of auction bidding are issues regarding personal legal interests, and the violation of the procedural fairness of the public auction system appears to be a gap in criminal law. Therefore, in order to fill this gap, the possibility of applying the act of price manipulation under the Capital Market Act will be reviewed.