[논문] 犯罪論體系上 詐欺罪의 새로운 照明-관련범죄와의 비교를 중심으로-

• 영문명: New Point of View about Fraud Crime on Dogmatism
• 발행기관: 한국형사법학회
• 저자명: 이성호(Lee Seong-Ho)
• 간행물 정보: 『형사법연구』형사법연구 제22권, 121~158쪽, 전체 38쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.02.02

영문 초록

General property theory is different from Individual property theory by the standard to calculate the amount of damage, these differences of each view were originated from that whether the essential qualities of Fraud is ‘Verletzungsdelikte' or Gefurdungsdelikte'. If we consider Fraud as ‘Verletzungsdelikte' as in German criminal law, The fact that infraction of property cleary happend to the victim will be important element in judging to accept or not the completion of Fraud. It is likely saying Fraud won't be completed at all if correspond cost of damage was already paid to the victim, because the general and(or) total damage is not happened to him in fact. (in the end) But if we consider Fraud Crime as ‘Gefurdungsdelikte', the completion of Fraud will be accomplished as soon as a danger happend to property. If we follow explanation about the theory of German criminal law, we can accept that completion of Fraud needs the damage of property because sole peril or risk(danger) itself lacks of completion of Fraud. After all, in case of calculating of victim amount size, General property theory consider the amount after using addition and subtraction as substantial victim, in other hand Individual property theory consider once happend threat towards infraction of property as substantial victim. Now, only by this way of explaining we can apparently explain the reason why our national scholar's opinions are much different from each other about Fraud Dogmatism, especially about legal interest(Rechtsgut) of it. Because modern day theories do not give us the answer cleary to the reason why the difference between General property theory and Individual property theory exists when both theory is going to explain the difference of legal interest(Rechtsgut) without precise considering about accurate meaning of Criminal law Statute. Especially both theory doesn't propose cleary the answer to why judicial precedent convicts simply peril ―causing act as Fraud. So, illegality and completion of Fraud crime should be determined by depending on happening of whether danger or damage cost. In addition, Individual property theory consider that Fraud crime is correspond price for damage was already paid to the victim as completion of Fraud crime, in my opinion the theoretical basis seems to be so weak. So, we have to consider that The meaning of ‘Gefurdungsdelikte'(The form of criminal offence without substantial legal consequence) is described in the first half section of Korean Criminal Law(Fraud Statute: article 347) and the meaning of ‘Verletzungsdelikte' is described in the half section. We could easily and more systematically access the Fraud Dogmatism by this explantion.

목차

Ⅰ. 여는 말

Ⅱ. 詐欺罪와 時勢操縱罪의 犯罪成立構造

Ⅲ. 關聯 犯罪의 詐欺罪성립구조

Ⅳ. 맺는 말

Abstract