불법영득의사의 내용과 적용범위

Abstract

Generally speaking, Zueignungswille means the intention to make use of and dispose of the properties as if one were a real owner, excluding the position of the right person of the properties. Following the precedent, Zueignungswille is the intention to utilize and dispose of other's properties, for the economic purposes, excluding anyone who has any claim against one's own properties. Here is the problem - while Strafgesetzbuch, StGB(the Criminal Code of Germany) contains an express provision 'in der Absicht, rechtswidrig zuzueignen' - in the intention, illegal acquisition, in the Criminal Code of ROK there is no express provision of it. Therefore, there has been discussion about the necessity of the intention of illegal acquisition. Currently, a majority of perspectives and precedent have stated their views about necessity of the intention of illegal acquisition as excess subjective illegal component besides intention as to the matter of most acquisitive crime. On the other hand, the opinion of the minority has stated it's view that there need not be another intention of illegal acquisition and in acquisitive crime including larceny(theft) there should be sufficient only with intention itself. The reason why there are conflicted opinions in the case is that: At first in the Criminal Code of ROK there is no express provision of it unlike Strafgesetzbuch, StGB(the Criminal Code of Germany) contains an express provision 'in der Absicht, rechtswidrig zuzueignen' - in the intention, illegal acquisition. Second, the content of inquisitive intention is so ambiguous and equivocal that we couldn't easily apply the intention of illegal acquisition to all acquisitive crime without variation. Considering this point, above all, to become a crime, if there should be the intention of illegal acquisition as excess subjective component besides intention itself, according to the perspective of necessity I would establish the content of intention in illegal acquisition after reviewing what is the profit and how we could concede the intention of illegal acquisition as an excess subjective illegal component. In this regard, we can define at least the intention of illegal acquisition as the intention of illegal acquisition to attain properties of others as if they belongs to one's own ones, although there's no need to the extent of economical use. According to this kind of definition, larceny(theft) should be differentiated from acquisition and there should be a subjective illegal component beyond intention. And by differentiating larceny(theft) from acquisition, the time when larceny is committed should be the time when acquisition is completed, not the time when theft is completed. Furthermore, in case of being without the intention of acquisition merely within the stage of theft, the agent shall account for Gebrauchsdiebstahl . Therefore, the main reason why we have to consider the intention of the illegal acquisition is that we could differentiate larceny from Gebrauchsdiebstahl which are in ambiguous domains one another. In addition, we have already the code of punishment in illegal use of vehicles, the range of Gebrauchsdiebstahl could be reduced. This means that it is necessary to have the intention of illegal acquisition and that the intention of illegal acquisition has practical profit in itself. Also the case of malicious mischief, unlike the crime of theft, is not punished severely because there is no especial subjective illegal component which is beyond the intention. So the intention of illegal acquisition has sufficient practical profit as a mark of telling theft(larceny) from malicious mischief. In these respects, in the acquisitive crime such as the acquisition of properties or the acquisition of profit, how much extent the crime is illegal depends on there is an excessive subjective illegal component in the crime. If we consider the intention of illegal acquisition or the intention of illegal profit as the component of intention, these objective facts have no choice but to be an objective composition prerequisite. So if the agent didn't get illegal acquisition or illegal profits, the case of the crime would be only attempted one. But, if the agent had the intention of illegal acquisition or the intention of illegal profits and had the victim lose the domination of the properties or get the agent lose his properties, the action would be a consummated crime. In this respect, among the crime of properties in Criminal Law, to the such crime as theft, robbery, fraud, blackmailing, embezzlement, malpractice, receiving stolen property, it is suitable to the principle of disclosure to acknowledge uniformly illegal acquisition or profits as the excessive subjective illegal component. Above all, if the conception of the intention of illegal acquisition is legislated with reference to the crime of property in Criminal Law, there will be no more controversy about it.