문서 부정행사죄의 불법과 권한중심 해석

• 영문명: UnlawfulUtteringofDocumentand Authority-FocusedInterpretation
• 발행기관: 한국형사판례연구회
• 저자명: 황태정(Hwang, Tae-Jeong)
• 간행물 정보: 『형사판례연구』형사판례연구 제23권, 457~490쪽, 전체 34쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2015.06.30

영문 초록

The Criminal Act has regulations of criminal punishment against illegal use of authenticated document. The one who has made out document without authority and/or false document with authority shall be punished in the use of document. But, punishment against use of document truly made by authorized person is thought to be exceptional considering benefit of document crime of “public reliability on the document.” Then, what’s the meaning of“unlawful uttering” may be of problem. Supreme Court s judicial precedent has adopted not only authority of use of document but also original usage of document to judge illegal use and has made four cases to have different legal judgment. But this study adopted authority of use of document as an only standard for unlawful uttering considering differences depending upon rights in document crimes, and interpretation of various kinds of ‘illegal use’ from point of view of the Criminal Act and related special laws. Unlawful uttering has no reason to judge depending upon original usage of the document, and extends scope of punishment at punishment against unlawful uttering of document up to other purpose of use. The loss and damage at other purpose of use is out of scope of legal benefit of unlawful uttering is thought to be inappropriate. To admit of unlawful uttering from point of view of Supreme Court s judicial precedent, expansion of scope of original usage may expand scope of the punishment to violate principle of Nullum Crimen, Nulla Poena Sine Lege. In this case, Supreme Court s judgment that did not admit of unlawful uttering was thought to be appropriate, but Supreme Court s basic position that followed judgment standard of original usage than authority of the use should be reconsidered.

목차

[대상판결] 대법원 2003. 2. 26. 선고 2002도4935 판결

Ⅰ. 문제의 소재

Ⅱ. 문서죄 구성요건체계에서 ‘권한’의 의미

Ⅲ. 형법 및 특별법 체계 내에서 ‘부정’사용의 의미

Ⅳ. 문서부정행사죄의 체계적 해석

Ⅴ. 마치며: 사안의 검토 및 결론

키워드

공·사문서 문서 부정행사 사용권한 본래의 용법 Official & Private Document Unlawful Uttering of Document Authority of Use Original Usage