통화에 관한 죄의 제정 경위와 개정 방향에 대한 연구

Abstract

Currency is a fundamental institution that occupies a central role in the modern economic order. Just as light and shadow coexist in the world, the development of a monetary economy has inevitably been accompanied by the shadow of currency counterfeiting. As currency has become the central medium of economic activity, the risk of counterfeiting that threatens public trust in it has also increased. Furthermore, the emergence of virtual assets, various non-cash payment methods, and Central Bank Digital Currencies (CBDCs) is expected to have a significant impact on the interpretation and policy concerning “crimes related to currency” in the future. To effectively address these challenges, it is essential to understand the historical development of currency-related crimes, the current issues, and the future directions. According to materials related to the enactment of criminal law, Japan’s special laws and criminal codes provide valuable insight into the current state of currencyrelated crimes in our legal system. This article examines these laws and the interpretive issues they present in the context of the historical development of currency-related crimes. Additionally, the substantive meaning of key elements the Criminal Code are analyzed, leading to the following assertions: (1) Considering the limited interpretation of “circulation” in legal theory and case law, cases recognized as “foreign currency in domestic circulation” are rare. Even in such cases, it is questionable whether they should be protected to the extent of differentiating statutory penalties, thus necessitating the deletion of Article 207(2) of the Criminal Code. This aligns with the intent behind Article 207(3), which reflects a spirit of universalism. (2) From a legal perspective, the meaning of legal tender should be understood based on the intention of the currency issuer. From this viewpoint, both the current approach of defining the object of the act as “metallic money, paper money, and banknotes which is leally authorised” and a simplified definition of “currency” should be examined. However, further review will be necessary in light of future technological and economic developments. (3) Article 211 of the Criminal Code requires revision in terms of clarifying its scope of application, subjective elements, the mode of conduct, and statutory penalties. (4) The scope of application of currency-related crimes is a matter of legislative policy, to be determined by considering the function of foreign currency in the era of globalization and international norms on counterfeiting. Nevertheless, any chosen direction must maintain theoretical consistency.