재물과 재산상 이익의 관계 정립과 관련 문제

Abstract

In this thesis, I studied the relationship between property and property interests, which are the objects of property crime, and examined the legal issues related to them. While criminal law clearly distinguishes between property and property interests as objects of property crime, I concluded that it is reasonable to understand their relationship as mutually exclusive concepts that each constitute the property. On the other hand, the majority explains that the benefit of property crime against property is the ownership of property. However, they only describes the benefit of property crime committed against property interests is simply property (rights) or the the entirety of property (rights). When considering the relationship between property and property interests, such explanation in not valid. Therefore, I proposed that the benefit of property crime against property interests to be specified as the “power to enjoy property interests”, similar to how the benefit of property crime against property is explained as ownership rights that signify the power to use, derive profit from, or dispose of the property. By doing so, we can more clearly identify the target that property crime against property interests seek to protect. Moreover, the systematic position of the intent to illegally profits was also discussed. It was argued that there is a mutually exclusive relationship between property and property interests. And the acquisition of property and the acquisition of property interests both signify obtaining the object of property crime. Therefore, it is difficult to agree with the argument that the intent to illegally profit only applies to property crime against property other than property interests, as the acquisition of profit interest is a constitutive element of the offense of the crimes. Unlike in the case of property crime against property, court precedents do not clearly explain the relationship between offense of the crimes and the intent to illegally profits in property crime against property interests. However, such an explanation is not valid. If the offense of the crime and the intent to illegally profits are separate elements for the establishment of the property crime against property, then the intent to illegally profits should also be considered as a separate element for the establishment of the property crime against property interests.