사기죄에서 처분의사의 의미 = The Meaning of Intent of Disposal in Fraud

다국어 초록 (Multilingual Abstract)

In the past, the Supreme Court had held that an act of disposal by the deceived, as well as their awareness of its consequences, is necessary to establish the crime of fraud. However, in the so-called “defrauding signature” case where the signature of the deceived was obtained by deception that prevented him from immediately knowing the dispositive nature of the document, a plurality of the Supreme Court in its en banc decision (2017. 2. 16. 2016Do13362) acknowledged that the defrauded person's intention to dispose of the property is necessary to establish the crime of fraud, but revised its position, stating that it may be a valid disposition even if the defrauded person was unaware of its consequences as a property transfer. As the arguments for and against the Court's decision continue to be debated, this article attempts to evaluate the judgment based on the nature of the crime of fraud and the independence of criminal law.
The majority opinion of the Supreme Court holds that a misled victim must be aware of their act but need not be aware of its consequences. The supplementary opinion points out that even if the deceived acted without awareness of the dispositive content of the property, if it is a valid legal act in the sense of other legal elements such as in civil law, it should be recognized as a legitimate reflection of the illegality of the deceiver’s behavior in order not to conflict with other legal orders. However, if the essence of the crime of fraud is to induce the defrauded person to dispose of the property through deception and to carry out the act of disposal directly, whether the defrauded person had the intention to give the property must be considered in the evaluation of the requirement. Only through such an interpretation can it be possible to establish the criteria for distinguishing fraud from other property crimes, especially between signature fraud and scheme theft, which are relatively similar in terms of deception, granting property, and obtaining property.
According to the principle inherent in criminal law, the assessment of the illegality of the deceiver's behavior is the key point, but due to the nature of fraud, this cannot be determined without considering the intent of the deceived. Of course, we cannot ignore the criminal policy concerns about the punishment deficiencies that arise from the inability to subsume the taking of “property interest” into theft. Nevertheless, addressing these issues through an atypical broadening of the requirements for fraud is unreasonable. It is time to fundamentally review the current system of property crimes, which differentiates between ‘property crimes’ and ‘gain crimes’, and to propose viable alternatives.