부작위에 의한 기망행위 - 대법원 2018. 8. 1. 선고 2017도20682 판결 -

Abstract

This study focuses on the decisions of The Supreme Court of Korea on the defrauding by act and omission. Article 18(Crime Committed through Omission) of the Criminal Act provides that “When a person who, having a duty to prevent the occurrence of danger, or having caused the occurrence of danger, does not prevent the occurrence of danger, that person shall be punished in accordance with the results of such danger.” The Supreme Court holds the opinion that the defrauding committed by an omission shall be regarded as equal to one committed by an action before the criminal law and thus regarded as the commission of fraud on the conditions that ⓐ a party who failed to act should have a legal duty to notify anticipated under the good faith principle to prevent infringement of legal interests of the other party and ⓑ it should fall into an error without the intervention of the party who failed to act. Also the Supreme Court holds the opinion that the violation of that duty shall be regarded as defrauding under the good faith principle without referring to the defrauding by omission explicitly. But it can not be said that in this case the Supreme Court always acknowledges the crime committed by omission only on the ground that the duty exists(ⓐ). If the error was caused by the party who failed to act then the commission of fraud by omission is impossible(ⓑ). The Supreme Court has the general criteria for distinguishing act from omission. If the decisions of The Supreme Court have consistency the distinction between the defrauding committed by an action and that by an omission should follow those criteria.