불법원인 급여물의 횡령죄 성부

• 영문명: Transfer of Property for Illegal Reasons from a Perspective Element of Embezzlement
• 발행기관: 한국형사정책학회
• 저자명: 남상근(Nam, Sang Geun)
• 간행물 정보: 『형사정책』刑事政策 第21卷 第1號, 69~102쪽, 전체 34쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2009.06.30

영문 초록

First of all, because the main text of Article 746 in the Civil Law, applies to the case of taking of possession performance for illegal cause in discrete, an embezzlement, which needs other's property as its object, can't be established. In the case of the provisory clause of Article 746 in the Civil Law, and can't be in a trust relationship, which Criminal Law should protect. Therefore, the establishment ofembezzlement cannot be approved. The other side, when the trustee or recipient misappropriated trust for illegal cause or illegal purpose in discrete, the ownership of the trusted property remained under the hand of the thrustor because Article 746 in the Civil Saw, isn't applied to, it is others property from the viewpoint of the trustee. Therefore, key discussionsabout the establishment of embezzlement about trust for illegal cause or illegal purpose are related to the problem of the subject of an activity whether it is custody from the trust-confidence relationship. However, the trust relationship of an embezzlement forms illegal content and embezzlement is heavily punished compared to the embezzlement of an object separated from occupation, it should have a value to be protected by Criminal Law. Though a factual confidence relationship in trust from illegal cause or illegal purpose can be approved, but isn't based on callable confidence relationship, which should be protected by Criminal Law, the colation of that confidencerelationship can't be fomented by Criminal Law. therefore, embezzlement can't be established in this case.

목차

Ⅰ. 문제의 제기

Ⅱ. 횡령죄의 불법구조와 불법원인급여

Ⅲ. 불법원인급여위탁의 구별 필요성 여부

Ⅳ. 횡령죄의 성립 여부에 관한 학설·판례의 태도

Ⅳ. 결론

참고문헌

키워드

횡령죄 신뢰관계 소유권 위탁관계 Embezzlement Trust-confidence Relationship Ownership Entrustment Relation