미국 연방법상 Mail and Wire Fraud에 관한 연구

Given the recent claims asserting that the cases of breach of trust in Korea are not prosecuted under the U.S. criminal system and that the statutes of Korea on breach of trust are not consistent with the global standards, it is deemed meaningful to look into how the U.S. legal system redresses such type of cases as defined in Korea. While there are no statues that specifically addresses the breach of trust cases in the U.S., the statutes on mail and wire fraud stipulated in the U.S. Code adequately cover those cases, as defined in the Korean system. Accordingly, this paper aims to discuss the mail and wire fraud aspects in more detail as codified in the U.S. Code. First of all, this paper introduces the related statutes of the U.S. Code on the pertinent issues, and then looks into the historical development of the law. More specifically, this paper describes in detail how the statutes were originally enacted as part of a broad revision of the post code which became the representative statutes on the cases of white collar crimes. In particular, the paper explains the process in which the “honest service theory” that had been developing in the case law became codified in the U.S. Code with the enactment of 18 U.S.C. 1346 in the U.S. legislature in 1988. In addition, this paper intends to introduce as many cases as possible regarding mail and wire fraud. The objective is to clearly show how the statutes that had originally been irrelevant to anti-corruption efforts were reborn to become the most powerful tool of such efforts in both the public and the private sectors according to the determined application thereof by the U.S. Federal Prosecutors’ Office. To begin with, the development process of the honest services theory before and after the McNally case, which was the first ruling of the U.S. Supreme Court, aiming to uphold the prosecution from applying the statutes for such expanded purposes. And then the rulings after the enactment of Article 1346 of the Code, which were swift responses from the US legislature regarding the McNally, which had been analyzed from diverse perspectives. The recent Skilling case, which is known as the second McNally ruling that has drawn wide attention as it was related to the famous Enron scandal, is introduced in detail in the paper with an aim to cover the most recent trends regarding mail and wire fraud. A dimensional and comprehensive analysis of mail and wire fraud was undertaken by looking into relevant laws and regulations as well as historical development and related precedents. This paper compares those mail and wire fraud cases in the U.S. to the cases of breach of trust in Korea. To that end, the paper first introduces in detail about the honest services theory, which enabled the category of mail and wire fraud to cover the cases relevant to Korea’s bribery, breach of trust and kickbacks. The difference between honest services fraud and traditional fraudis explained. In addition, an analysis is made to find the difference between mail and wire fraud in the U.S. and the cases of breach of trust in Korea in terms of their components, such as property damage, profit, and its causal relationship. In conclusion, this paper aims to prove wrong that the claims that breach of trust as defined in Korea is not prosecuted in the U.S. legal system and that the Korean statutes regarding breach of trust are inconsistent with global standards. In particular, it has been pointed out that the breach of trust statutes and their applications under Korean law are as effective as the mail and wire fraud statutes of the U.S. Lastly, this paper emphasizes that the best approach is to carry out in-depth studies and explore optimum solutions by taking into account the unique aspects of the Korean laws and regulations as well as its cultural locality.