횡령죄의 기수 시기

Abstract

The timing of a crime completion is usually determined according to the degree of protection of legal interests. Accordingly, in the case of embezzlement, it is discussed whether the crime is infringing or endangering. However, as with embezzlement, while discussing whether the crime is infringing or endangering, academic theories and judicial precedents are unusual in determining the timing of a crime completion based on the theory of expression and the theory of realization based on the illegal intention to obtain property. It is unreasonable to consider it appropriate to determine the timing of the embezzlement completion from two perspectives shown above. The expression theory and the realization theory are based on the intention to acquire illegally, and consider the time when the crime of embezzlement is committed when there is an objective act that expresses the illegal intention to acquire property, or when the illegal intention to acquire property is realized. However, it is unfair to judge the timing of completion based on the illegal intention to acquire property, and the reasons are as follows. First, in most crimes, the timing of the completion is determined depending on whether the offence is infringed, concretely or abstractly endangered, so the timing of the completion of the crime of embezzlement must also be determined in relation with the degree of protection of legal interests. Second, since the meaning and systematic status of the illegal intention to acquire property are unclear, it is unresonable to determine the terminating timing based on the vague concept of the illegal intention to acquire property. Third, since crimes are regarded as completed only when all the elements are satisfied, it is unreasonable to judge whether it is a completed crime based solely on the illegal intent to obtain property, which is only a part of the subjective elements of embezzlement. The background of the view that determines the timing of embezzlement completion based on the illegal intention to obtain property is that the acquiring or losing of the legal interest of ownership or the danger of acquiring or losing that ownership does not occur as the result of embezzlement, so the timing of completion is hard to be determined according to the degree of protection of the legal interest. However, if the protected legal interest in embezzlement is viewed as ‘the actual state of ownership’ of using, profiting, and dealing of property, it is natural to determine whether or not to protect it based on the degree of protection of the legal interest as follows. When a person who keeps effects or real estate disposes of it by transferring or providing security, etc., at the stage where the person decides to dispose of the property and negotiates the terms of the transaction with the other party who wishes to transfer the property or acquire a security right, and reaches an agreement of intent. If there is a concrete and realistic risk of infringing on the legal interests of the state of de facto ownership, and accordingly, the legal interests are actually violated by delivering the effects or completing the transfer of ownership of real estate or the registration of the creation of a title, then I think the timing can be judged reasonably, from the perspective of a concrete endangering crime or abstract endangering crime.