사기죄의 처분의사 해석에 있어서 피해자의 자기책임의 원칙

Abstract

Regarding fraud and disposition, the Supreme Court has changed its existing position that the victim needs to be aware of the disposition result through the enclave decision. The decision to dispose has changed the position of the precedent, saying that it is sufficient if there is an awareness of doing a certain act, and even awareness of the result is not necessary. The main issues of the target judgment can be said to be the nature and structure of fraud, whether disposition is necessary in fraud, and what the disposition and intention are. In particular, it is important because the scope of the crime of fraud differs depending on whether the disposition is necessary and the contents of the intention to dispose.
 With regard to the meaning of disposition according to the nature and structure of fraud, the conclusion through theoretical consideration according to the principle of self-responsibility of the victim is as follows. Even if a disposition act is required as a sign of distinguishing fraud and theft, and a corresponding disposition intention is required, it has the meaning of the victim's involvement and does not require recognition of the disposition result. On the other hand, the previous rulings require that the meaning of disposition intention to constitute fraud is recognized by the disposition result, and that there is an act governed by such intention. However, according to this, if the victim recognizes the result of the disposition and furthermore, there is an act governed by such intention, the damage is caused by the victim himself, and the victim's self-responsibility is recognized.