‘횡령 후 처분행위’에 대한 형법적 평가

• 영문명: Evaluation of a criminal law on the ‘act of disposal after the embezzlement’
• 발행기관: 한국형사판례연구회
• 저자명: 김봉수(Kim, Bong-Su)
• 간행물 정보: 『형사판례연구』형사판례연구 제25권, 197~228쪽, 전체 32쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2017.06.30

영문 초록

The point of this Supreme Court Cases are (1) Does the accused’s act putting up maximal collateral constitute a charge of embezzlement? (2) Should the act of disposal after the embezzlement be punished as an independent crime? In my relationship with breach crime of trust, the embezzlement has a character as the special law. Therefore, where the embezzlement is concerned, it needs to be strictly interpreted. If the accused’s act has not reached the level to trespass on some one’s proprietary rights, the establishment of embezzlement should be denied and the breach crime of trust should be reviewed. On the one hand, the term “Unpunishable Act After Crime” means that the act after crime (the post act) is unpunishable whenever the punishable crime (the previous act) is committed and it contains a whole illegality of the post act. In this case, nevertheless if the post act is punished as an independent crime, it occurs the problem of the double risk necessarily. On the other hand, the illegality of the post act exceeds the previous one, it is no more unpunishable. In the several criminal cases, the “Unpunishable Act After Crime” is mentioned in the property crimes like embezzlement, fraud, malpractice, and theft. In the criminal investigation and the trial, the “Unpunishable Act After Crime” could influence a judgment of the court, an arraignment of the prosecutor, a statute of limitations, an appeal, and so on. Eventually, the concept of the “Unpunishable Act After Crime” prevents a suspect from the double punishment or double risk. But it may cause harm to substantial criminal justice because unpunishable act after crime shall be exempted from legal sanctions even though it should be a punishable crime in a different circumstances. So it is important that establish a elaborate standard to define if a certain act is an unpunishable act after crime or not.

목차

[대상판결] 대법원 2013. 2. 21. 선고 2010도10500 전원합의체 판결(횡령) 〈‘명의수탁자의 처분과 횡령’ 관련 사건〉[공2013상,599]

[평석]

Ⅰ. 대상판결의 의미와 한계

Ⅱ. 죄의 성립에 관한 판단

Ⅲ. 죄수 관계에 관한 판단

Ⅳ. 결론 ― ‘호미’로도 충분하다.

키워드

불가벌적 사후행위 이중(평가)위험 횡령죄와 배임죄의 구별 법조경합 죄수판단 Unpunishable Act After Crime double risk distinction of embezzlement and breach crime of trust Competition of the provision a comprehensive crime Standard of counting crimes