가상자산의 착오이체와 배임죄

• 영문명: Mistransfer of virtual assets and the crime of breach of trust
• 발행기관: 한국형사판례연구회
• 저자명: 장성원(JANG, Seong Won)
• 간행물 정보: 『형사판례연구』제30권, 423~464쪽, 전체 42쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2022.06.30

영문 초록

The Supreme Court is dealing with the guilt of the accused who misappropriated bitcoins. This includes the legal evaluation of the virtual asset called Bitcoin, the difference between the crime of embezzlement and the crime of breach of trust, the specific content of the requirement of a ‘manager of other people’s affairs’ as the subject of breach of trust, and the practical meaning of the trust relationship as a criterion for judging betrayal. The Supreme Court holds that even if the accused arbitrarily uses or disposes of the bitcoin transferred to the defendant's electronic wallet, regardless of the legal cause, unlike the case of embezzlement in the case of error remittance, it cannot be punished for breach of trust based on the principle of good faith. . The Supreme Court is of the view that virtual assets or their trading systems should be viewed differently from legal tender on the premise that they are still uncertain and unstable. Transactions using legal and institutional systems, such as virtual asset transactions, seem to take the form of personal property transactions, but they are not simply about trust between individuals, but are based on trust in the social transaction system of transaction participants. In a society where transactions are systematic, the trust relationship is not a form of consignment relationship in which business transactions are exchanged directly between individuals, but rather a relationship based on the principle of trust between transaction participants based on trust in the system. The crime of breach of trust is not intended to protect thesocial transaction system or the public's awareness of it, but rather to protect the trust of the parties to the transaction, that is, the victim's trust in the transaction system. The judgment on the transfer of virtual assets by mistake is an expression of the fact that the relationship of trust in the system or system cannot be recognized to the extent that the criminal law protects it. At that juncture, there is a unique criminal offense called protection of the trust of transaction participants based on the trading system and monetary system. It can be understood from this perspective that public and social system perspectives, which are different from civil illegalities, can drive trust relationships based on the principle of good faith, and that the crimes of breach of trust in the real estate double sales case and the embezzlement are recognized in the wrong remittance case. In this regard, the Supreme Court can be evaluated as additionally charging the independent requirements for judging trustworthiness based on the principle of trust in breach of trust in terms of criminal illegality.

목차

Ⅰ. 들어가며

Ⅱ. 가상자산에 대한 형법적 보호

Ⅲ. 가상자산 착오이체와 타인사무 처리자

Ⅳ. 나가며

키워드

가상자산 착오이체 배임죄 신임관계 타인의 사무를 처리하는 자 virtual assets mistransfer breach of trust trust relationship A person who handles the affairs of others