횡령죄의 주체 요건인 위탁관계의 발생원인 - 대법원 2017도17494 전원합의체 판결에 대한 비판적 분석을 중심으로 -

Abstract

The subject of embezzlement is the one who keeps the property of others. Here, Keeping is occupation by fiduciary relationship. Therefore, fiduciary relationship is a qualification that the subject of embezzlement must possess. The precedent has expanded the scope of the embezzlement by expanding the fiduciary relationship. Specifically, the precedent recognizes customs, logic, and good faith principle as well as contracts and management of affairs as the cause of the fiduciary relationship. This article critically analyzes the expansion of the fiduciary relationship. that the precedents take. It is the perception of this article that expanding fiduciary relationships on the basis of abstract norms can reverse the clarification of the constitutional requirements required by criminal justice. This article argues that the subject requirement of embezzlement must be limited by clear criteria. Even if this causes the scope of the embezzlement to be reduced, the protection of the victim can be achieved as another way of civil settlement. The basic perception of this article is that it is not justice to put the sword of criminal law on the problem to solve civilly.