범죄수익 자금의 세탁과 횡령죄의 성립에 관한 법리 검토 - 대법원 2017. 4. 26. 선고 2016도18035 판결 -

Abstract

Performance of illegal cause means giver's no request of properties because of giving of properties by illegal causes. Beneficiary who disposes of properties by illegal causes may applied by embezzlement crime. Negative theory and affirmative theory, and compromising theory of performance of illegal cause and illegal consignment were used depending upon ownership of performance of illegal cause. Precedents adopted negative theory, and beneficiary having more illegality is admitted to commit embezzlement crime. The supreme court recently judged as follow: A defendant is given suggestion from Party A to give benefit in exchange for check by cash and to exchange some of them by money acknowledging criminal income by fraud of Party B, and to embezzle cash with help of Party C and Party D to spend cash at discretion to be accused, and defendant was judged not to commit embezzlement crime of the check. But, allowance for the crime belongs to illegal performance to deny request of return and to transfer ownership so that negative theory of no crime of beneficiary was not accepted. Article 746 of the Civil Law says no positive help of recovery of properties at illegal cause not to give exemption of beneficiary's act and/or third party's act. Even if request of return of the Civil Law for performance for illegal cause is not admitted, beneficiary shall return benefit to the giver and to commit crime of 'violation against good custom and social order according to Article 103 of the Civil Law, and to dispose of for private purpose. Defendant commits money laundry crime in violation of the law of regulation of concealment of criminal benefit to dispose at discretion. The study examined Supreme Court of adoption of giver's comparative sentencing of illegality as well as beneficiary's illegality, and application of performance of illegal cause to another crime, and judgment based on illegality.