사기죄의 구성요건으로서의 처분행위

Abstract

Throughout the paper, elements of the fraud that are acknowledged based on the consistency between the prevalent view and the precedent cases have been studied. These elements include the legal nature of the disposition, elements of the disposition and of the disposer, etc. In regards to legal nature of the disposition, there is a confrontation between two views, the legal act and the real act. The legal act view bases its theory on the legal property concept while real act view bases on the economic property or legal⋅economic property concepts. When considering the inherent meaning of the property, the property concept should take the form of economic property. However, doing so creates the contradiction within the law-and-order that it would be more appropriate to apply the egal·economic property concept. Accordingly, it would also be appropriate to consider the nature of the disposition as a real act. For a disposition to be acknowledged as an element of fraud, that disposition first has to arise from the misapprehension of the deceived person. If causal relationship is not found between the disposition and the misapprehension, the fraud cannot be acknowledged. On the other hand, the intent-to-dispose also has to be considered and there is a contradiction over its necessity and un-necessity. This problem is deeply related to the definition of intent-to-dispose and its meaning should first be correctly and accurately defined. One might ask whether the intent-to -dispose should incorporate both the awareness of the disposition and of the corresponding consequences. My answer is no. If the deceived person knew precisely what the consequences of disposition were going to be, the person was in no way misapprehended and therefore the fraud cannot be concluded. Therefore, the intent-to-dispose should only indicate the awareness of the disposition. Having said this, it would be appropriate to see the ntent-to-dispose as necessity. Furthermore, for a disposition to be acknowledged, the disposer has to be in certain status. First, the disposer has to be a natural person. For instance, if the deception is made onto the non-natural person such as computer and the erroneous disposition occurs, the case cannot be treated as a fraud. Also, the disposer should be capable of disposition where the word capable implies the person’s basic decision making ability. The biggest controversy, however, regarding the status of disposer is whether the disposer should have the legal authority to carry out the disposition or that he can just be someone whose position allows for a disposition. This problem arises when the deceived person is not the victim himself. For the time being, under the assumption that it is correct to see the legal nature of the disposition as a real act, it would be appropriate to say that the deceived person can be someone whose position allows for a disposition. Regard to this matter, the precedent cases of the supreme court show inconsistency. However, no other particular standards of judgement seem to be appropriate and it would still be sufficient to solve the cases based on the basic standard concerning whether the person is in the position allowing him for a disposition. Besides, the person can be said to be in this position if the he could make a disposition solely based on his decision.