착오로 송금된 금전을 임의로 소비한 경우와 재산범죄

Abstract

The supreme court held that the receiver who arbitrarily spent money remitted by mistake has to take the criminal liability of embezzlement. However, embezzlement has been committed by not whoever but a person who has the custody of another's property. The supreme court has widely admitted the bases of trustee not only 'the contract of trust' but also 'management of affairs', 'custom' and 'trust and good faith'. Embezzlement will not be able to be committed if the actor is not trustee. It is important whether the actor is trustee or not. Therefore, the supreme court from the viewpoint of the principle of "nulla poena sine lege" should judge very carefully whether the confidential relationship between the two parties exists or not. The lower courts has held that the actor in this case should take the criminal liability of embezzlements of lost articles. According to the article 360 of the criminal code, the objects of 'embezzlements of lost articles' are articles. We should consider the legal point whether the deposit is a sort of article or not. It seems that the meaning of money focuses on the value in exchange rather than a thing. We can easily draw money from an account. We should consider that the remitted deposit by mistake is regarded as lost article in a viewpoint of criminal law. Although the remitter can investigate the receiver's account number, name, address by checking the details of the bank account, it is difficult that the remitter restores the remitted money by mistake. In addition, the supreme court has held whenever the receiver acquires the claim to the deposit corresponding to the transferred money by giro in his bank, even if there is no transaction between the remitter and the receiver(Supreme Court Decision 2009Da69746 delivered on December 10, 2009). In the viewpoint that not only the ownerless things but also the things possessed without entrustment of the person who holds a right are regarded as lost articles, the money remitted by mistake are regarded as lost articles because the money was not consigned on the basis of confidential relationship.