기망행위를 수단으로 한 권리행사와 사기죄의 성부

Abstract

There isn’t any object of a fraud in this case, because the infringement of the use is excluded from the punishment scope of the fraud by the provision of the execution law of the civil affairs. Even though the existence of an object is accepted, an attempted fraud isn’t realized, if the interest that is recognized in the ‘Stoffgleicheit’ with the damage, isn’t examined. However it doesn’t exist or the existence isn’t clear at least in this case. And also, in point of view that a result is the object of the recognition of intention, the completion of the intention is impossible because of the result without the Stoffgleicheit. Furthermore, the case without the intention of a illegal interest can’t be punished because of the fraud is a property crime. Therefore this case can’t be estimated at a fraud because of the nonexistence of the intention of a illegal interest. It is inappropriate to compare this case with the existing case because of the difference of the essential of the facts. Without the rational explanations to some problems as stated above, the Supreme Court should have acquitted the accused according to “in-dubio-pro-reo”, the dominant principle of crimainal law.