소송사기, 조세포탈죄, 위계공무집행방해죄의 행위수단의 통일적 이해

Abstract

The Supreme Court identifies procedural fraud as a crime of fraud, and subjects the means thereof to a strict interpretation of the law as opposed to other forms of fraud. Yet, procedural fraud is committed against the civil court, which is different from ordinary individuals due to its superiority in professional knowledge and information access authority. Moreover, there are Supreme Court rulings that deny the crime of fraud in the act of making fictitious claims and submitting falsified proof. This is understandable, given the injustice of the purpose of the act, and the intentionality and adequacy of the means of the act, but these conceptual elements are not required in other types of fraud. The Supreme Court rulings that denied the crime of tax evasion in the act of concealing gains can also be understood in the same vein. Thus, the means of procedural fraud and the crime of tax evasion can be deemed to share the common conceptual elements of, namely, the injustice of the purpose of the act, the intentionality and adequacy of the means of the act. The conceptual elements therein correspond to those of ‘fraudulent means’ as defined in the Criminal Act. Furthermore, procedural fraud and the crime of tax evasion can be considered to embody the nature of ‘obstruction of the performance of official duties by fraudulent means,’ as: 1) both are committed against national institutions, namely the civil court and tax authorities; and 2) Korea, unlike major countries including Japan and Germany, regulates the ‘obstruction of the performance of official duties by fraudulent means’ by law. In conclusion, the conventional view that procedural fraud is one of the types of fraud crimes needs to be revisited.