불법원인급여와 사기죄 -한국과 일본의 논의를 중심으로-

Abstract

The property provided for the illegal purpose is not protected by civil code. However, in case that the property is provided for the illegal purpose due to the fraud, it is a problem whether it is fraud or not. For example, if one receives a payment by cheating victims, saying he/she will sell drugs, carry on prostitution, or conduct counterfeiting and murder by contract,then the cases are applicable. In other words, it is the most important issue in performance for illegal cause and fraud whether property that is not protected under civil code should be protected criminally or even if property is protected civilly, then it should be protected criminally or not. This study decides validity of previous discussions on performance for illegal cause and fraud by examining Korean discussions about this issue, Korean fraud clauses, and Japan’s discussions. Korean and Japanese theories and precedents are basically similar. However, specifically Japan’s discussions are mostly positive about performance for illegal cause and fraud but don’t limit the scope of punishment nor interpret denying the unity of legal order itself.On the other hand, Korea’s positive perspective seems to give up the unity of legal order too easily. The property as a subject to be protected by the criminal law should be decided according to the legal and financial property concepts. The financial property concept should be autonomously decided by property protection of criminal law. There is a claim that the unity of legal order has no absoluteness, but according to this opinion, contradiction between standards of behavior may occur and people may don’t know what to do. Criminal law should be implemented and applied comprehensively in light of the spirit of entire legal order to the contradiction. Therefore, if property is provided due to illegal causes, the property cannot be protected under the law and therefore it is reasonable that a case of fraud is not established.