사기죄의 처분행위와 처분의사 - 대법원 2017. 2. 16. 선고 2016도13362 전원합의체 판결 -

Abstract

The reviewed decision in this article(2016DO13362) deals with a case so called ‘defraud of signature’ that some property damage is caused by a person cheated by a defrauder falling into an error and signing a document of disposal. In this case, whether an action of a defrauded person corresponds to an act of disposal in fraud or not, especially when the defrauded person didn’t recognize details and legal effect of that document while he/she did recognize the existence of signature itself came into question. The majority opinion of the Supreme Court had changed the existing opinion and broadened the scope of fraud by deciding that the intent of disposal could be approved not only when the defrauded person recognized details and legal effect of that document but when he/she just recognized the existence of signature itself. On the other hand, the dissenting opinion, supported by six chief justices, insisted that the defrauded person must have had precise recognition of the result of his/her disposal to approve the intent of disposal as the existing opinion of the Supreme Court did. It seems to me that we need to consider the nature and the legislative history of fraud to judge whether the fraud is constituted or not. To be more specific, the principle of good faith in our economic life, allocation of risk between defrauder and defrauded person, responsibilities of careless victim etc. should be taken into account.