회화제작의 예술적 자유와 회화거래의 형법적 한계

The law should respect the freedom of art and the collective autonomy of artists in the production method of painting and its legal authorizing, while it should set limits on the transaction of artists with citizens to the minimum extent necessary to protect civil liberty including property. If a painter has done most of the creative expression work of painting, he is an author in the artistic sense, but the author in legal sense may, however, be the painter who gave the concept with crude guidelines and the expression work for a fee to him/her in the mutual agreement. This creates an inconsistency between art and law in the definition of author, and a categorical conflict between freedom of art and civil liberty. The conflict is, for example, resolved by obliging the painter as legal author to notify the creative expression work of other painters and to guarantee buyer’s right to Information in the process of signing a contract with the buyer. This guarantor obligation is based on the common sense or moral thinking, on the Consumer Protection Act and Fair Trade Act. Exceptionally is no such obligation recognized for the conceptual art, to which the painting with imaging of korean traditional gambling card couldn't belong. The breach of this guarantor obligation causes the error of the buyer on the value of the traded art piece, and a purchase contract at a high price with the result, that the breacher acquires property gains, and the buyer suffers corresponding losses. The breacher should, therefore, be regarded as having committed the fraud in the korean criminal law. However, if the buyer already knew the expression work of other painters, any causal relationship between deception and error couldn’t be established. There remains the possibility of being fraud attempt. If the painter as seller didn’t know that his act was a criminal fraud, he would have made a error on the criminal law in the form of subsumption. The justifiable reason is not recognized, because the error results from the self-judgement on the legality of his conduct without seeking a professional legal advice, even though he perceived the violation of a moral notice obligation.