법익의 보호 정도에 따른 기수 시기의 판단 기준

Abstract

If the standards for determining the timing of individual crime completions are different, the evaluation of criminal acts cannot be properly performed, making it difficult to perform the protective function of criminal law that guarantees the freedom and rights of citizens from the arbitrary exercise of the right to punishment. Therefore, this paper proposed a single standard that, depending on the degree of protection of legal interests, depriving offenses are completed when legal interests are infringed, concrete endangering offenses are completed when specific and realistic dangers occur, and abstract endangering offenses are completed when all required acts are committed. Considering whether or not the constituent elements are satisfied or completed based on legal interests can be a theory of interpretation that is consistent with the purpose of criminal law, and conventional theories and precedents have also judged the completion of crimes from the perspective of the degree of protcetion of legal interests. However, though the conventional theories and precedents have generally judged the completion of offenses based on the criteria of concrete and abstract endangering offenses, but they have not systematically established a unified standard for judging the completion of offenses, so they do not strictly distinguish between concrete and abstract offenses. Consequently, in many cases, it was not clear when the offenses were completed. In the case of theft, the establishment of the crime is discussed from the perspective of the concept of concrete and abstract offenses, but separately, at the same time, the completion point is determined according to the theory of acquisition moment. Using the above two approaches simultaneously makes it difficult to deduce conclusion. Therefore, the acquisition theory should be discarded and the legal interest protection standard should be adopted in that it will be easier to balance it with other crimes in determining the establishment of a crime by applying the same standard as other crimes when the completion of thefts are determined from the perspective of the degree of protection of legal interests. In the case of embezzlement, the discussion on the point of comlpetion is divided into two parts: one is to decide whether the embezzlement is a endangering crime or an depriving crime based on the degree of protection of legal interests, and the other is to decide it according to the expression theory and acquirement theory based on the intention to obtain illegal gains. It's improper to use the two standards simultaneously. The expression theory and the acquirement theory determine the timing of acquisition based only on the intention to acquire illegally, but exclude the important criterion of the degree of protection of legal interests from the material for determining completion, and judge whether or not it has been completed based on the intention to acquire illegally, which is an unclear concept. Therefore, it was concluded that the completion of the embezzlement crime should be judged according to the theory of protection of legal interests.