權利의 實現과 財産犯罪

• 영문명: Exercise of Rights and Property Crimes
• 발행기관: 전남대학교 법학연구소
• 저자명: 문형섭(Moon, Hyung-Sub)
• 간행물 정보: 『법학논총』제27권 제1호, 1~24쪽, 전체 24쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.06.30

영문 초록

Since property crimes are crimes against other people’s property, there emerges a question of whether the exercise of one’s legitimate rights, although through illegal means, still satisfies the elements of property crime. In such cases, the rights to be exercised could be either the property right of claim based on ownership rights or the obligatory right of claim. The crime could be either the crime of illegal acquirement or the crime against economic interests. However, the legal scholars have been discussing only the issue of whether the exercise of obligatory right can constitute the crime of larceny. Also, the school that construes the meaning of illegal acquirement as the illegality in acquirement of property maintains that, if one secretly takes back his or her own property possessed by another, it constitutes a larceny. As the elements of larceny include taking of “another’s property,” it is clear that there cannot be a crime of larceny with respect to one’s own property. Despite this, the above-mentioned interpretation is still maintained by some scholars, and this is due to lack of consideration over the fact that there is a fundamental difference between the exercise of ownership rights and the exercise of obligatory rights. Also, when one employs illegal means to retrieve one’s own property from another’s possession, there is no invasion on ownership interests but on possessory interests. It is the exercise of one’s ownership rights, therefore, there can be no crime of illegal acquirement, but since it invades another’s posessory right, there can be a crime against economic interests. The academia has not noted this point yet. In light of the above, it is significant that Professor Sang-Gyu Lim of Chonnam University has presented a paper that distinguishes between the exercise of ownership right and the exercise of obligatory right in property crimes, based on the new view that the exercise of rights shall be treated as an excuse for criminal liability. However, I do not agree with the both views: the view that the exercise of ownershipright constitutes an element of property crime as a principle, by emphasizing the rule against self-help under civil code and the view that the exercise of legitimate rights can be an excuse for criminal liability. As such, it is meaningful for me to articulate my opinions with a critical review on Professor Lim’s paper, since it might attract the academia’s attention, which will in turn lead to a better solution. In my view, there is no need to adhere strictly to the principle against self-help. Likewise, there is no need to focus too much on the issue of criminal liability, as the issue of exercise of tights is one for the constitution of crime elements and the liability issues is a general issue. To state the essence, the exercise of ownership right cannot constitute a crime of illegal acquirement since it is not an act of acquirement. However, if another’s possession is a protected possession under the penal code, it can constitute a crime of interference of another’s rights, a crime of illegal deprivation of another’s possession, a crime of larceny by trick, or a crime of extortion, depending on the way of the deprivation of possession. The exercise of obligatory rights is an act of acquirement, even done by a person with the right to retrieval of a specific item, and if the means adopted are illegal, then it is a crime of illegal acquirement. The exercise of rights regarding monetary obligations or economic interest is the same.

목차

Ⅰ. 글머리에

Ⅱ. 기초적 문제

Ⅲ. 소유권의 실현

Ⅳ. 채권적 청구권의 실현

Ⅴ. 위법성 조각의 적극적 판단

Ⅵ. 결 어

키워드

불법영득 불법이득 영득의 불법 수단의 불법 보호될 점유 Property Crimes Illegal Acquirement Larceny Self-Help Obligatory Rights Ownership Rights.