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KCI등재 학술저널

점유개정의 방식으로 양도담보가 설정된 동산을 임의로 처분한 채무자의 형사책임

횡령죄와 배임죄의 성립여부에 대한 검토를 중심으로

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The Criminal Responsibility of a Debtor who Arbitrarily Sells a Movable Assets in which a Security by means oIt is not proper to place an absolute meaning on the form of delivery of a movable asset for criminal protection with regard to a security on a movable assets by means of transfer. Moreover, it is not acceptable to see that a debtor who sets up a security on a movable assets by means of transfer can embezzle a property that substantially belongs to his ownership in relation to a creditor. Therefore, in the case in question, it is justifiable to support the approach of the majority perspective to assess an establishment of malpractice rather than embezzlement. The case in question declared that the subject of malpractice must satisfy the requirement of ‘holding a right to handle a work of a creditor’. The standard of the subject of malpractice in this case in question formalize and thus restrain the scope of subject of malpractice. The case in question will be the leading precedent that can determine what is the subject of malpractice. Just like a double transfer of a movable property and a stock or a security on a movable assets by means of transfer, a double transfer of a debt or a license is expected to be excluded from the possibility of criminal punishment. Regardless, flexibility of judgment does not disappear when it come to the Korean Supreme Court’s approach to still punish a double transfer of real property when a contractor received some amount of middle payment. Whether there is a duty to cooperate with preserving the other’s property, other than the case of handling the other’s property with a particular right, should depend on the consideration of nature of property object and right or merit and demerit of transaction status.f Transfer is Established.

【대상판결】 대법원 2020. 2. 20. 선고 2019도9756 전원합의체 판결

【참조판결1】대법원 2020. 6. 18. 선고 2019도14340 전원합의체 판결

【참조판결2】대법원 2018. 5. 17. 선고 2017도4027 전원합의체 판결

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