불법원인위탁과 횡령죄 성부의 재검토

This article considers the potential punishment and necessity of embezzlement in illegal cause bailment without the intention of ownership transfer. Based on the interpretation of Article 746 of the Civil Law, the Korean Supreme Court has said that embezzlement is not built even if the recipients arbitrarily use this by interpreting that the ownership is actually transferred to recipients in the performance of illegal cause. However, this is not because it is valid as a legal principle of ownership transfer. This method is to practically guarantee the legal principle that does not grant payers a claim for unjust enrichment. Although the majority does not consider the illegal cause bailment and performance for illegal cause according to the intention of ownership transfer, it needs to consider an ownership to be transferred to payers if payers convey them as an intention of ownership transfer. In such cases, there is no room for embezzlement. However, major cases called performance for illegal cause in criminal law are cases of the illegal cause bailment similar to the case where payers request recipients to convey an ownership without the intention of ownership transfer. It is not appropriate to solve these cases the same category as the former. In order to distinguish this, the latter case is distinguished as illegal cause bailment. In this case, it seems necessary to recognize the independence of embezzlement in that there is no room for ownership transfer. Although the existence of fiduciary relationship protected by the criminal law becomes a problem, the fiduciary relationship is enough as a consignment. It is necessary to punish this when breaking this. If the term fiduciary relationship here is not worth a relationship protected by criminal law, both payers and recipients should be punished. It is not appropriate to exclude only recipients from the scope of criminal punishment. The Korean Supreme Court found the procurer in embezzlement in Judgment 3 by accepting the comparison theory of illegality, which is a clue as to Article 746 of the Civil Law, to criminal law. However, criteria to judge that illegality of either party is extremely serious are vague. The criteria to judge the effect of illegality of bribery or prostitution on society are not absolute, and the results vary depending on who judges it. Eventually, the results are in danger of being dependent on arbitrary discretion of judges under these circumstances. If the necessity of criminal punishment is dependent not on the gravity of the illegality but on the degree of social stigmatization, there is no reason to maintain the opinion to deny the establishment of embezzlement under the assumption that the ownership is transferred to recipients in case of the performance for illegal cause. The Korean Supreme Court can be evaluated to make independent judgments on criminal law when acknowledging the need to punish even performance for illegal cause regardless of the presence or absence of a claim for unjust enrichment.