[논문]횡령죄의 기수시기와 장물죄의 성립여부

• 영문명: [Article]The Completion of Embezzlement and the Acquiring Stolen Property
• 발행기관: 한국형사법학회
• 저자명: 김태명(Kim Tae-Myeong)
• 간행물 정보: 『형사법연구』형사법연구 제23권, 111~136쪽, 전체 26쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.06.01

영문 초록

The Supreme Court holds an opinion that embezzlement complete when a person, who have the custody of another's property, reveal the intention to have unlawful acquisition of it. In a case that the accused, who was a representing director before, acquired the money which the chief executive embezzled from the company in aware that it could be stolen property, the original judgement ruled that he couldn't be punished for acquiring stolen property, because the money which the accused received from the chief director was not acquired from usurpation action nothing but was offered on usurpation conduct. But the Supreme Court held that because the chief executive revealed the intention to have unlawful acquisition of it and the crime of embezzlement was already completed, the money became a stolen property at the moment when the usurpation work was ended, and the accused who received the money from the chief director shall be punished for acquiring stolen property. According to the judgement of the Supreme Court embezzlement is not an infringement-crime but an danger-crime unlike other property crime(for example in larceny, which is the representative property crime along with embezzlement, the criminal shall be punished for attempted crime when he didn't acquire property), and there are few margins for attempts so most conducts are punished on charge of completed crime. And most of the person who acquire property joining on usurpation are punished for acquiring stolen property, of which the statutory penalty is much heavier than that of embezzlement. Theory of the Supreme Court that widen scope of completion and shortens that of attempt of embezzlement is great doubtful elbowroom. And it's not proper to punish the accused, who concerned on the act of committing of the principal offender before his usurpation work ends substantially, on charge of acquiring stolen property by advancing completion time in a big jump, despite crimes concerning stolen property are accessory after the fact along with criminal concealment crime, destruction of evidence crime etc., The present article studies when embezzlement complete and if the conduct of the accused, who acquired the money which the chief executive embezzled from the company in aware that it could be stolen property, shall be punished by participation in embezzlement or on charge of the crime concerning stolen property.

목차

Ⅰ. 서론

Ⅱ. 횡령죄의 기수시기

Ⅲ. 장물취득죄의 성립여부

Ⅳ. 결론

[Abstract]