판례상 사법(私法)적용에 의한 횡령죄 구성요건의 판단기준에 대한 문제

Abstract

Embezzlement is very important in very serious offense. The action of trespass is not equal to embezzlement at the trespassory liability to accomplish. Then the embezzlement is criminalized under Article 355 ⑴ of the Korean Criminal Code. Embezzlement is very different from each Breach of Duty. Breach of Duty is residual conception against Embezzlement. Embezzlement is not violent crime. Embezzlement have immediate connection with private property. Because this connection will applicable rules private law. The principle of rules private law has a wide range of applications. This intensify at the ideological conflict mix something up the space between criminal law and private law. Therefore, These problems accept a new in difference of viewpoint. Public law follow an ideal in put public interest before that of the individuals. Ownership of private law is not an identical proposition. In particular at yield possession exercise a far-reaching influence to establish embezzlement of criminal law. To give a concrete example, there is establish a trust fund. This is asking a person to keep custody and storage. But storage in Article 355 ⑴ of the Korean Criminal Code dissimilar to give the responsibility of private law. We need a slightly different approach. In perspective Supreme Court of Korea make the mistake of hasty generalization in criminal law. To put it concretely, Ownership and storage analyze something into its elements in grounds of identical. We should follow an ideal difference of domain. Article 355 ⑴ of the Korean Criminal Code is to give a vague description ‘Nullum crimen sine lege’ Principles. Return-reject a request in embezzlement must interpretation for the Article 355 ⑴ of the Korean Criminal Code. There are to figure out a way at four. The first, Being intention to have unlawful acquisition and the second, Not being intention to have unlawful acquisition the third, being malicious damage at representative the fourth, there is nothing. Return-reject a request in embezzlement is not attach indiscreetly perspective being established at the commit a criminal act. To draw a conclusion, interpretation in Article 355 ⑴ of the Korean Criminal Code is founded synthetically and a scientific explanation.