재산상의 손해발생은 사기죄의 성립요건인가

Abstract

The Korean Criminal Code Article 347 rules that criminal fraud is committed when a person “defrauds another, thereby taking property or obtaining pecuniary advantage from another.” Causing mistakes by deceiving another, and thereby obtaining property or pecuniary advantage is the requirement derived from the prescription of the Article above. In addition to these statutory elements, the ruling theory calls for another unwritten element; that is, the theory insists that proprietary damage be included as a requirement of criminal fraud. Such interpretation arises from the concern that the scope of criminal fraud might be overextended under the current jurisprudential precedents, which rule that a mistake caused by a swindler need not be about the essential elements of the juristic act. Moreover, the precedents thoroughly apply the ‘but for’ rule when determining the establishment of criminal fraud. That is, the precedents conclude that criminal fraud is established when finding the fact that the person deceived would not have delivered property unless he or she was deliberately misled. Thus, criminal fraud may be established even when the deliverer has caused a mistake in regards to the accessory circumstances, rather than the essential elements, of the juristic act. The ruling theory has taken notice of this to argue for the addition of proprietary damage as a requirement of criminal fraud; however, such addition raises the issue of being contradictory to Article 347. Here, this study proposes to narrow the extent to which criminal fraud may be established by limiting the subject of deception while respecting the wordings of Article 347. It is plausible to conclude that criminal fraud is established only when there is an error regarding the essential elements of the juristic act, such as realization of intent of trade or substance of benefit in return.