과장․허위광고와 사기죄의 기망 - 判例를 중심으로 -

Abstract

False and puffery advertising which are link with the margin of value judgement and factual assertion as the area where the solution in the business relations of the capitalistic society is hard little by little. The division of puffery advertisement and false advertizing are problem of degree and existence with separate way, and it could be recognized with circumstances all fraud, but in the recognition of fraud, the degree of puffery advertisement is savage more strongly. From here, abstractive criterion of theory and judicial precedent which is identical with the civil suit of the cancellation in compliance with a fraud and claim for compensation is not appropriate because it ignored the essential difference of the civil case and criminal case. To prevent the infinite expansion of fraud punishment and to mortgage prediction possibility, the new criterion is necessary. The concrete criterion of judging the fraud in the false and puffery advertising is what is decisive in the purchase decision-making of the consumer, influences substantially. Here are the possibility of trying to present concrete three kind criteria which are uncertainty, non-objectivity and mistaken recognition possibility at the scale which judges. The core of fraud characteristic judgement is that it deprives the possibility of the selection different against the goods or service of the consumers caused by with the advertisement, and it was caused by with it and effect them went mad to the selection or conduct of the consumer