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RISS 인기검색어
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- 저자 : 金泰洙(Kim Tae Soo, 김태수) (검색결과 3 건)
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虛僞ㆍ誇張廣告의 詐欺罪 成否 - 不動産廣告를 중심으로 : 虛僞ㆍ誇張廣告의 詐欺罪 成否
金泰秀(Kim Tae-Soo) 중앙대학교 법학연구소 2007 法學論文集 Vol.31 No.1
The fraud in the context of property law does not appear simply as a deception of others but as a form of an act that exploits a person"s defrauded state, to dispose the property. The Korean substantive criminal statute merely provides ""by frauding people"". The provision should include not only factual aspects but also prescriptive aspects. Although a transaction involves the widespread practice of exaggeration or fabrication, the transaction should be considered as a fraud when an actor"s main purpose is to deceive another to enter a transaction of property. Even though both fabricative and exaggerative advertisements clearly constitute frauds, these forms of frauds should be justified as an reasonably justifiable act based on the article 20th of the Korean substantive criminal statute. The mere display of fabricative or exaggerative advertisements is not a meaningful commencement of frauds. Rather, an act of fraud should be considered to start when a purchaser is personally told about fabricative or exaggerative advertisements or called from a seller. That is, it should be considered as a commencement of a criminal fraud when an actor exploits a defrauded and confused purchaser.
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金泰秀(Kim, Tae-Soo) 중앙대학교 법학연구원 2008 法學論文集 Vol.32 No.1
Real-property double-selling is the case that a seller sells a real property twice to each different buyer. Nonetheless, if one side contract of a double selling practice of real-property is void, it would not be taken as double selling. In contrast, if a contract has a cancellation cause, the contract would be valid if a party holding cancellation power does not use the power. Therefore, even though double-selling can stand with cancellation cause, the argument for double-selling looses power after a party cancels a contract retroactively. Contrarily, because, even when there is a cancellation cause in a buyer's side, the contracts is valid until the buyer uses cancellation power, the contracts can be considered as double-selling Our courts have considered the practice of real-property double-selling as a type of misappropriation. Nonetheless, an act of misappropriation shall be punished as a criminal act only when a person who takes care of another person's business breaches trust. The concept of another person's business can be divided into two categories, such as a business for another person and a business of another person. The criminal responsibility of misappropriation should be placed on a practice of double selling only for a business of another person. If not, every single contracting party can be considered to be a person who is doing a business for another person and then may have possibility to take criminal responsibility based on a guilt of misappropriation. In addition, a duty to cooperatively transfer names on a real-property register is a business for another person, but not a business of another person. It is because a register should be done in concert by both parties even though a seller took earnest money, part payment and the rest. A duty to cooperatively transfer names on a real-property register is not exhaustively a buyer's business but should be considered as a business of a seller as well as a business for a buyer. Therefore, it is not justifiable to punish a person who makes double-selling of real-property.
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