대작(代作)미술품 거래와 사기죄 : 대법원 2020. 6. 25.선고 2018도13696 판결을 소재로

Unlike trade of forged paintings, the issue as to whether selling heavily assisted paintings had not been seriously discussed in the legal field until today. In this regard, the recent decision of the Supreme Court on this issue attracted public attention. Being the first to address a case involving trade of proxy paintings, this decision, which became well known as it involved a famous entertainer, carries an important meaning in determining the legal principles related to copyright law and crime of fraud, which will affect decisions for similar cases in the future. This paper reviews the issue as to whether selling paintings while not informing that they were painted by a ghost painter constitutes fraud under the criminal law by analyzing the trail court, appellate court and Supreme Court decisions on the aforementioned case. The key issues of the analysis were: (i) whether reviewing the non-disclosure of the fact of painting by proxy as an act of fraud by omission is valid; (ii) whether, based on the principle of good faith, the accused can be given the status of guarantor who must inform the fact that paintings were created by a ghost painter; and (iii) whether the accused bears the duty of disclosure to inform the buyers in advance that a third person was involved in the production of the paintings at issue. On the basis of the review, this paper concludes that the decisions of the appellate court and Supreme Court, which denied the accused person’s duty of disclosure by applying strict criteria, is appropriate, rather than the decision of the trail court that found the accused guilty after determining that he had the duty of disclosure.