무상의 편면적 급부와 사기죄의 성부-주로 일본의 논의를 중심으로-

Abstract

So-called begging fraud or donation fraud is the case that even if one disposes his properly deceitfully, he knows that he disposes the property himself and the behavior of his own disposal will reduce his property. The chief issue of this article is how to judge the validness of fraud in such cases. Thereupon, regarding such issues, this paper makes judgments by examining existing theories about property loss from fraud and also particularly the discussion in Japan having similar regulations to those for fraud in Korea’s criminal law. Many theories focus on the difference of gratuitous one-sided benefit and mutual benefit to set up the criteria to judge fraud using its purpose or mistake. However, only with the theory of frustration in goal achievement or the theory of mistake in the benefit of law, it is not enough to clarify the range of validness of fraud in gratuitous one-sided benefit. The strength of these two theories is that it allows the construction of more logical theory than the theories taking as their criteria the property loss in gratuitous one-sided benefit or the completion of fraud. Despite this, if the judgment based on the two theories still cannot solve the problem of gratuitous one-sided benefit, there is no need to adhere to these theories. In the problem of gratuitous one-sided benefit as well, it is valid to determine the completion of fraud by examining the requisites of fraud including property loss in general. However, even the views to judge property loss practically take fairly ambiguous criteria of judgment provided by those theories. It is thought that in order to establish requisites legitimate for the functions of criminal law or the characteristics of property law of fraud, as objective requisites, it is valid to require ① the behavior of deceit by the agent of fraud, ② the mistake of the deceived, ③ the behavior of property disposal by the agent of disposal based on his own mistake, ④ the occurrence of property loss resulted from the behavior of property disposal, ⑤ the occurrence of property gain of the agent of fraud or the third party as a result of the requisites. With regard to the acquisition of property of the agent of fraud or the third party as a result of the requisites, it seems to be valid to affirm the occurrence of property loss only when there is reduction of economic value. Also, in case of gratuitous one-sided benefit, it is adequate to judge the validness of fraud after examining the appropriateness of each requisite for each of the concrete cases. In particular, in the delivery of property, if the behavior of deceit is not about crucial fact, or even if the behavior of deceit is about crucial fact, if the behavior is not about facilitating the behavior of property acquisition from the beginning or acquiring property deceitfully, it does not correspond to the behavior of deceit as a requisite of fraud, and the validness of fraud is denied.