금제품에 대한 절도죄와 사실상 소유권의 개념

Literature offers number of different views of prohibited articles. Each view defines the term as an article not allowed to possess and own, or an article that can be possessed but not allowed to own or vice versa. Some views split the concept into absolutely and relatively prohibited articles. However, prohibited article does not explain a property of an item. Considering items like firearms or gun powders that are normally considered as prohibited articles are allowed for some licensed people, intrinsic property of firearms or gun powders does not make these items prohibited articles. Therefore, prohibited articles are the type of items that are possessed by persons who could have acquired permission or authorization, but one did not. Also, items like counterfeit bills should be considered prohibited articles, because they are type of articles that is possessed/owned by someone who intends to wield its value, although wielding its value is not allowed someone with such intention. Having the topic seen in this light, the idea of prohibited article should not be determined by factual factors like property of goods, but it should be determined by a standard that whether admissibility lies within legal rights to possess or own an article. Understanding prohibited articles as above produces a conundrum such as establishing stealing prohibited articles as a theft. With respect to the benefit and protection of the law, there is an internal conflict between the problem as a possessory right versus an ownership, majority of the literature regards ownership as the benefit and protection of the larceny. In this case, should someone stealing an item from someone who owns the item not legally allowed by law to own be treated as larceny is a problem. For the dispute of such scenario, we can utilize comparative method and refer to American precedent of their judgment on the act of stealing alcohols under the National Prohibition Act. As disputes around scenario indicates, in principle, it is hard to think of a larceny for an asset legally not allowed to own. However, it is impossible to not acknowledge larceny in an act of stealing an article that other person who thinks he is owning the article makes use of it. As American precedent indicates, if larceny of prohibited articles is not acknowledged, prohibiting article from the public would in fact promote owning of the article by a burglar. To resolve paradox, even in the light of taking ownership as the benefit and protection of the larceny, it is appropriate to treat ownership as de facto ownership rather than de jure ownership. De facto ownership has yet been publicized, but the concept has already been taken effective in legislation. Article 3 of a legislation that concerns drug control prohibits an ownership of any ingredients that contains components which can become an ingredient for narcotics, and in the same act 58 paragraph1, punishes an act of owning of such raw materials, it also considers acquiring counterfeit bill as a subject to punishment to apply criminal law. The owning in this context preconditions owning or possessing as de facto ownership. Therefore, de facto ownership should be acknowledged for prohibited articles. Ownership of owning prohibited articles should be protected from being stolen, regardless of an act of owning it makes the person as the subject to punishment. Ownerships that are protected by the Criminal Law are in fact de facto ownership.