사기죄에서 ‘교부받는 행위’의 의미

• 영문명: The Meaning of ‘Act of Being Issued’ in Fraud
• 발행기관: 한국형사판례연구회
• 저자명: 하태영(Ha, Tae-Young)
• 간행물 정보: 『형사판례연구』형사판례연구 제26권, 161~223쪽, 전체 63쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2018.06.30

영문 초록

1. First of all, I intend to review the elements of fraud crime in Article 347 of criminal law and the meaning of ‘issuing act · issuing intention’(Ⅱ). I try to investigate the meanings of theories on why we use ‘act and intention of disposal’, which is not specified in the law, and what ‘issuing act · issuing intention’ means. In addition, I intend to analyze fraud related precedents of Supreme Court(Ⅲ). I am going to organize Supreme Court’s position of precedents from 1970s to February, 2017, and understand the tendency. Next, I will analyze majority opinions and minority opinions of the supreme court decision on fraud in February, 2017, which is the subject decision of this study(Ⅳ). I try to research from what perspectives the demonstration is done. I also consider the problems and improvement plans of the supreme court decision’s changing precedents. I will suggest an independent legislative change in the principles of safety, reliability and retroactive prohibition(Ⅴ). Lastly, I will consider the problems and improvement plans of Supreme Court sentencing’s sentences(Ⅵ). I will summarize the above contents at the conclusion(Ⅶ). 2. The supreme court decision, Supreme Court 2017. 2. 16. Decision 2016Do13362, changed the existing opinions. The following is the summary of the supreme court decision: “The disposal intention is enough if the deceived who is in the mistake recognizes what he or she is doing. It is not necessary to recognize the result of the act. The act of the deceived who sealed and signed on the disposal document can be considered as disposal act. Even though the deceived didn’t recognize the specific details or legal effects of the disposal result, or the document, he or she recognized the act of sealing and signing on the disposal document, so the disposal intention of the deceived is also acknowledged.”(the precedent that confirmed the theory of issuing intention necessity and the theory of issuing act recognition) 3. I agree with the conclusion of the majority opinion. The meaning of the Supreme Court decision is that the deceived(victim) needs issuing intention, and the issuing intention contents are enough with issuing act recognition(in the expression of academic field and precedents, the theory of disposal act recognition, issuing situation recognition, damage causing recognition). “The victim and 7 others fell into an error due to the defendant’s deceiving act, so the deceived sealed and signed on the written application for registration of the right to collateral security settings needed for the defendant to loan 100 million won by mistaking for a document for furnishing of security for 30 million won, and the deceived had financial damages. Therefore, the act of the victim is also considered as disposal act in the crime of fraud.” This arranges many controversies clearly. I think the crime of fraud should be legally interpreted from the perspective of a person who performs the act. If the deceiving recognizes the issuing act of the deceived(victim), the deliberation can be acknowledged by subjective elements of a crime. 4. I think many precedents about Supreme Court’s ‘disposal intention and disposal contents of fraud’ had problems. It shouldn’t be interpreted too strictly under the term of ‘swindling signature’. Writing ‘document’ in deception or being issued with ‘seal’ and ‘authentication certificate of one’s seal’ is totally different from simple ‘document related crime’. The criminal intention at the time of act is different, and the risk of the second act of infringing the rights is very high. If too strict interpretation is done in the objective elements of a crime because the issuing act of the deceived is too concentrated, the criminal law can’t defend law and order.

목차

[대상판결] 대법원 2017. 2. 16. 선고 2016도13362 전원합의체 판결 [특정경제범죄가중처벌등에관한법률위반(사기)(예비적 죄명: 사기)·사기·사문서위조·위조사문서행사·공정 증서원본불실기재·불실기재공정증서원본행사·횡령] 〈근저당권설정계약서 등에 대한 피해자의 서명·날인을 사취한 사건〉

Ⅰ. 서론

Ⅱ. 형법 제347조 사기죄 구성요건과 ‘교부행위·교부의사’의 의미

Ⅲ. 사기죄 관련 대법원 판례 분석

Ⅳ. 대상판결 평석

Ⅴ. 피고인에게 불리한 대법원 전원합의체 판례변경의 문제점

Ⅵ. 대법원 판결문 문장론 문제점과 개선방안

Ⅶ. 결론

키워드

사기죄 처분행위 처분의사 교부행위 교부의사 법률문장 판례변경 fraud crime in Article 347 of criminal law the meaning of ‘Act of Being Issued’ in fraud the precedent that confirmed the theory of issuing intention necessity and the theory of issuing act recognition the problems and improvement plans of the supreme court decision’s changing precedents