절도죄 성립여부의 재검토 －대판2009도11781－

Abstract

The newspaper which is distributed with no charge the various market the judicial precedent which recognizes a larceny came out from Supreme Court about taking. Was classified with the event which is slight the monetary penalty is sentenced disappeared from memory inside of the people. That from this judgment the reappraisal is necessary about the crime system theory. First, must try to observe the act authorization where becomes the object of criminal law as a matter of discussion. Specially, relates with a limit function from function of act concept and the investigation is necessary. Is an act where becomes the object of criminal law as a matter of punishment? Or in compliance with a different norm is a concept must be controlled? Must investigate. This case in compliance with a criminal law the act must be controlled the possibility of doing is not the thing is thought of person oneself. The newspaper which is distributed with no charge in compliance with the law already thinks escaping the scope which is controlled. Again to say, as the newspaper which is provided with no charge social trust will take does and if says and that one issue there is, is unjust for this criminal law to control. Investigated about the legal interest which the larceny protects. If larceny protects profit and with what recognizing the formation of larceny injustice is indicated the thing about at this event. The newspaper which is provided with no charge with the fact that the right of ownership is already abandoned encounters. The right of ownership being abandoned will not be able to recognize the right which is legal. Because, the right in compliance with the law because is a value which is protected. That there is the right of ownership which has a legal protection value about the free newspaper, is unjust. Therefore, the judgment of the court of justice is a problem. In end, investigated the subsidiarity Principle of criminal law. If in compliance with the control of criminal law, to the case will be able to solve a social danger commitment of criminal law must have self-control.