형법상 점유의 존부와 귀속에 관한 이론적 일고찰

In criminal law, possession is commonly understood to be a purely factual concept. Thus, current theory explains a possession servant can have possession in terms of criminal law, and then admitted possession is limited by normative factors. However, this research brings up a fundamental question against the idea that a possession servant cannot be a possessor in criminal law as in civil law. Even an actual holder of a thing may not be a possessor but may be a possession servant, if the holding is performed under the instruction of another person. In this sense, the stipulation of Article 195 of the civil law about the possession servant can be transferred intact into the criminal law theory. This research is a theoretical attempt to classify the accumulated judicial precedents into types, arranging the mechanism of the judgment on the concept of possession. This paper sorts the judgment patterns on possession into existence judgments and attribution judgments, dividing types again within the judgments to draw a detailed theory. The precedent ruled possession is not judged from any viewpoint other than a normative one, based on the socially accepted idea, but the author assumes it would be possible to transform the normative judgment into a practical judgment through the theoretical study mentioned above.