사기와 책략절도의 구별기준

• 영문명: Distinction between Fraud and Deceptive Theft
• 발행기관: 한국형사판례연구회
• 저자명: 김태명
• 간행물 정보: 『형사판례연구』제31권, 227~260쪽, 전체 34쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2023.06.30

영문 초록

Fraud is committed when a person obtains property or property gains by deceiving another person to do an act of disposition. The Supreme Court had ruled that an act can be recognized as disposition only when the victim have the intention to dispose, that is, the awareness of the result of the disposition, and the act governed by this intention. But in 2017, the Supreme Court decided en banc that the act of disposition as an element of Fraud does not require the recognition of it’s consequences and the intention to dispose, and is merely an intention to act that leads to property damage. And last year in a case that the accused stopped by a convenience store to buy something, and took a wallet that the clerk of the store, who mistook it for the belonging of the accused, handed it over to him, the Supreme Court punished the accused for fraud not for theft, even though in many similar cases the Supreme Court had punished the criminals for theft, who defraud a person who don’t have an intention to dispose, and was handed over an object from the victim. The new rulings of the Supreme has been criticized that the new does blur the distinction between fraud, deceptive theft, and it aggravate the punishment by convicting the acts of fraud that are appropriate to punish for theft. In this study I tried to point out the problems with the new rulings in recent cases and suggest ways to improve them.

목차

◇ 대상판결: 대법원 2022.12.29 선고 2022도12494 판결

[평석]

Ⅰ. 문제의 제기

Ⅱ. 사기와 책략절도의 구분

Ⅲ. [대상판결]에 대한 평가

Ⅳ. 맺음말

참고문헌

키워드

사기죄 절도죄 책략절도 처분행위 처분의사 theft fraud deceptive theft act of disposition intention to dispose