일본의 사기죄에 관한 최근 대법원 판례의 경향에 대해서

Abstract

In the past 15 years, the Supreme Court of Japan has made important decisions on fraud (Article 246 of the Japanese Penal Code), whether it establishes the crime when a defendant deceives about his/her identity or use and obtains a property or profit with consideration. Traditional theoretical arguments are summarized and recent development of judicial precedents by the Supreme Court is reviewed in this article. Presented cases are opening a bank account under a false identity, receiving a boarding pass at the airport check-in desk by concealing the intention of letting another on board, and playing golf while hiding his status as an organized crime group (boryokudan) member. In such cases, the majority of criminal law scholars are conventionally inclined to deny criminal liability for fraud, for there is no “property damage” which is unwritten requirement of the crime. In most cases mentioned above, however, the Supreme Court has concluded that the defendants were guilty of fraud. Here, the emphasis is placed not on the element of “property damage”, but on those of “fraudulent act”. According to the Court, it is to be examined, whether the content of the deceit is decisively relevant for the victim to determine the delivery of the property and whether the hiding of his true identity or use can be interpreted as an implicative false representation. Also, the Court made different decisions on the similar cases under the same criteria. One defendant was guilty because of the victim’s strict policy of boryokudan exclusion, but the other was not.