사기죄에서 처분행위와 처분의사의 위치

Abstract

Article 347 of the Korean Criminal Act defines fraud as “taking property or obtaining pecuniary advantage from another by defrauding another person.” Thus, ‘act of disposal of another person’ and ‘occurrance of damage’ are not included. However, the Korean court and legal theories have been focusing on ‘the act of disposal’ rather than on the legal component of ‘taking/obtaining property of another person.’ Hence the completion of fraud has been determined based on the meaning, content and effect of the act of disposal. Because the act of disposal requires intent of disposal, whether the intent should include the recognition of the result of disposal is debated. However, such interpretation does not correspond to the phrase of the Article 347 of the Korean Criminal Act. The target of punishment in fraud is the act of the accused, and thus the act of the accused should be evaluated in determining the completion of fraud, not the act of a person who is deceived. In other words, fraud should be determined through the act of the accused, not through the act of the one who is deceived. Nevertheless, the stance of the Korean court in determining the completion of fraud through the act of the one who is being deceived deviates from the essence of fraud. The act of disposal is only the ancillary means in determining whether the act of the accused corresponds to the components of fraud. That is the proper place of the ‘act of disposal’ in fraud. In determining the completion of fraud, evaluating whether the accused obtained property or pecuniary advantage by deceiving another person is sufficient. The act of disposal is not always required, and either way, the intent of disposal is not required. Therefore, the interpretation that there must be the intent of disposal in the act of disposal, and that the intent must include both the recognition of the act and the result of the disposal, is not an adequate interpretation of the Article 347 of the Korean Criminal Act.