사기죄에서 ‘신의칙’의 의미

• 영문명: The 'Good Faith Principle' in Fraud
• 발행기관: 한국형사법학회
• 저자명: 최정학(Choi, Cheong-Hak)
• 간행물 정보: 『형사법연구』형사법연구 제24권 제4호, 177~199쪽, 전체 23쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2012.12.31

영문 초록

The Korean Criminal Law writes a 'deceit' as an activity of the fraud. It is generally admitted that one of the criterion deciding the crime is the 'Good Faith Principle.' This principle originates from the Civil Law and its content is not always certain. Therefore, some critics have said that it is not proper to consider the principle(of the Civil Law) as a component of the Criminal Law. However, the court and more academics support the principle. This essay, standing this major point of view, tries to clear the meaning of the principle and suppose the way of making it more adaptable. It is to differentiate the cases and to make them typical to be used more easily in the procedure. This essay makes up only 3 kinds of types. But, needless to say, it is possible and desirable to expand the typicalization in the future. In addition, this essay reviews the 'ultima ratio' of the Criminal Law. In general, the Criminal Law is thought of as an ultimate method to resolve a conflict. As long as there are any other way, it would be better. However, in case of the fraud, it is inevitable that we have a numerous cases in ordinary life. Because, if we would not change the word of prescription of the fraud, it is an unavoidable fact that there are so many deceits in the commerce and transactions. Therefore, on the contrary, it needs to widen the breadth of the punishment and the object of protection for some frauds which can provoke huge amount of damage like a financial one.

목차

Ⅰ. 머리말

Ⅱ. 기망행위의 구별과 신의칙

Ⅲ. 신의성실의 원칙의 내용

Ⅳ. 사기죄와 형법의 보충성

Ⅴ. 맺음말

참고문헌

Abstract

키워드

사기죄 묵시적 기망 부작위에 의한 기망 신의성실의 원칙 보충성의 원칙 Fraud Deceit 'Good Faith' Principle typicalization 'Ultima Ratio' of the Criminal Law