등기명의신탁에서 신탁부동산의 임의처분과 횡령죄의 성부 - 대법원 2016. 5. 19. 선고 2014도6992 전원합의체 판결 - = Is disposal of trusted real estate in registration title trust punishable by embezzlement to the title truster?

다국어 초록 (Multilingual Abstract)

The Supreme Court Judgment(2016.5.19. 2014do6992 en banc) declared that disposal of trusted real estate in registration title trust by title trustee shall not be punished by embezzlement to the title truster. The reasons of this judgment are as followings: ① Title truster does not have property right of trusted real estate though the subject of embezzlement(Article 355 ⑴ of Korean Criminal Act) is a person who has the custody of another’s property. ② In view of the essential nature of embezzlement, the trust commission of embezzlement should be defined to legally protectable trust commission. Nonetheless trust commission in registration title trust is not protection-worthy trust commission but unlawful relation which constitutes crime. I agree with the conclusion and the reasons of Supreme Court Judgment(2016.5.19. 2014do6992 en banc) totally. And I edit in two reasons: Firstly the change of legal evaluation on title trust of real estate from in principle legality - exceptionally illegality to in principle illegality - exceptionally legality considering the purpose of legislation of Act on the registration of real estate under actual titleholder``s name. Secondly it will protect truster who commits crime(crime against Act on the registration of real estate under actual titleholder``s name) if disposal of trusted real estate in registration title trust is punished. According to the conclusion and the reasons of 2014do6992, not only embezzlement to the seller of the real estate but also breach of trust to the title truster will be denied.