배임죄의 손해 산정 - 공소사실의 특정 관점에서 -

Abstract

Criminal Law stipulates breach of trust the loss element of crime prescribed, as a result of damage breach of trust is a very important element in the Criminal Code. And fact charged that the statute that requires certain specific even in the Criminal Procedure Code. But now it overlooked when it came to calculating loss in practice or academia breach of trust to the economic and financial analysis. As a result in particular of the fact charged appeals have been neglected guarantee function for the defendants. And that's why watching a breach of trust Gefährdungsdelikt, because even came to include the risk of loss caused to property damage. In the case of fraud in property loss it may be interpreted to mitigate property loss because it is not a requirement of the prescribed element of crime. But if there breach of trust Despite element of crime must be interpreted strictly interpretation, would come to be interpreted as including the risk of fraud so far even property loss occurs. But the loss is the element of crime, and so profit and also connected for certain Act on the Aggravated Punishment, etc. of Specific Economic Crimes law. That burden is severe and difficult, and the prosecutor should also bear the same disadvantages caused by non-specific. And that the reference is to be determined from the economic point of view, respectively, depending on the type of transaction activity based on a breach of trust acts as a decline in the physical property values. And the risk of property loss is distinguished from property loss occurred in the limits of the wording. Understanding the risk of property loss property damage, caused by the confusion is because the attempt system. Now, the court should provide a clear direction for damages to property and profit from a stage of the statement of fact charged, also from an economic point of view, depending on various conditions such as the type of transaction and the object of misappropriation acts on the basis of a decline in real estate values. By doing so it should be avoided so that the unexpected attack of the defendant and impose a punishment that is proportional to the risk.