착오송금 내지 보이스피싱 범죄에 이용된 계좌에서의 예금인출에 대한 형법적 쟁점 - 일본, 독일과의 비교법적 연구를 중심으로 -

Abstract

This paper examines the criminal legal problems of the receiver who arbitrarily spent money remitted by mistake and the account holder of the third party’s name bankbook used for voice phishing fraud. Domestic theories and precedents, as well as Japanese and German, are compared with a focus on whether the legal nature of deposits can be regarded as property or whether they should be regarded as property interests. While Korea and Japan place importance on the aspect of exchange value of money and tend to regard it as property, Germany places importance on compatibility with civil law theory and regards it as a property interest. This difference is that if the deposit is regarded as property, there is a possibility that the account holder’s deposit withdrawal may be punished for fraud, embezzlement. However, if the deposit is regarded as property interests, it can be punished only for fraud and trust breach. In Japan, account holders are being punished for fraud by omission at the Supreme Court in the case of mistake of remitter, while Germany does not punish them under the criminal law. Meanwhile, our Supreme Court has been consistently punishing embezzlement for a long time. However, acknowledging the establishment of the crime of embezzlement has a difficulty in explaining the nature of the deposit and the entrusted relationship between the remitter and the the remittee. In addition, it is not reasonable that the crime of embezzlement is determined by whether the sender remitted cash or transferred money between accounts. As such, acknowledging the establishment of the crime of embezzlement has the difficulty of accepting many weaknesses and criticisms that must be overcome in terms of criminal law theory, even though the necessity of punishment is acknowledged. In the end, it can be said that the Supreme Court’s attitude exposed irrationality in terms of criminal law theory by choosing ‘avoidanceto the general provision of the principle of Good Faith’. If punishment is unavoidable in criminal policy, I think it is reasonable in terms of criminal law theory to make the voice phishing fraud case a fraud by omission, and the mistaken remittance a crime of lost-property embezzlement.