도난당한 금전의 소유권 변동과 타인의 재물 - - 대법원 2012. 8. 30. 선고 2012도6157 판결 -

Abstract

The Supreme Court decision (2012Do6157) dealt with a case where the owner of the stolen money took back the specific stolen money by intimidating the thief. The decision ruled out his behavior can not be seen as extortion for the following reasons: Only property of others is subject to extortion i.e. one's own property is not; Ownership is defined by civil law, commercial law, and other substantial laws; In exceptional circumstances where the stolen money can be specified and differentiated from other money such as when the thief possessed only the stolen money, the money can not be seen as property of others except of the victim of the theft - considering the relationship between the thief and the victim of the theft. The legal reasoning which only property of others can be object of extortion and ownership depends on substantial law is reasonable. Hence, I agree with the Court decision that his behavior can not be seen as extortion. However, there is doubt that the decision might presume the principle of transfer of ownership on the money through the transfer of possession. In my opinion, transfer of possession does not bring the consequence in transfer of ownership to the money. Therefore, it is not appropriate to define the aforesaid case in the Court decision as exceptional.