분실물 보관자의 위장(僞裝)소유자에 대한 분실물 교부행위의 처분행위 성부 - 대법원 2022. 12. 29. 선고 2022도12494 판결 -

The fact of the precedent of this article is that an owner of a store handed a wallet over to the Defendant who pretended to be the proprietor of the wallet. In this case, the problem is what would be the criminal charge of the Defendant for receiving the wallet from the store owner who mistook the Defendant for the wallet proprietor. The prosecutor who investigated the case charged the Defendant with theft and the first trial admitted the charge. However, at the trial of appeal, the prosecutor changed the written arraignment by adding a charge of fraud for the substitutive purpose, then the appellate court acquitted the crime of theft and convicted the crime of fraud, and the Supreme Court made the same judgment. Moreover, the victim was written to be the owner of the store when the prosecutor changed the written arraignment, but the Court ex officio changed the victim to be the proprietor of the wallet and thus judged the case as a type of triangular fraud which the victim and deceived person are different. ‘How to decide the occupant’, ‘What would be the criteria to decide the authorized person who can dispose of when the victim and the deceived one are different’, and ‘How to judge whether there was an act of disposal in triangular fraud’ are legal issues of the precedent. The precedent in this article reconfirmed existing legal principles that the act of disposal takes a role to distinguish theft from fraud and the act of disposal can be admitted when a criminal acquired property or profits in property through the action of the deceived person. Since the Supreme Court decided the concept of the intention to dispose in en banc, ‘How to judge whether there was an act of disposal’, and ‘How to distinguish fraud from deceptive theft’ have been controversial among practical and academic affairs. Under this situation, the precedent is very meaningful, and this article critically analyzed and reviewed the precedent based on the above issues. As the victim lose his wallet in the area where the owner of the store manages, the wallet belongs to the owner of the store. The store owner, the deceived person, was the status of who can dispose of the wallet as he was the occupant of the wallet by effectively controlling and managing the wallet. Therefore he can be admitted to be the subject of the disposal. The act of disposal, however, can be confirmed when the directness of the effect of disposal is ‘objectively’ admitted. The effect of disposal means that the act of the victim itself brings direct effect to the Defendant of acquiring property or profit in property and the Defendant has no need to do further acts. To confirm the act of disposal, all matters including ‘real intention of a person who grants property’, ‘circumstances leading up to the act of granting’, ‘circumstances before and after granting’, and ‘an objective meaning that an average person of society might understand when the average person is in the shoe of the receiver of the property’ should be considered through a normative interpretation. The owner of the store mistook Defendant to be the proprietor of the wallet and then gave it to Defendant. Considering the real intention of the owner of the store, and all the circumstances, the act of the owner of the store giving the wallet is interpreted to be the act of disposal which directness of the effect of disposal can be admitted. Therefore the judgment of the Supreme Court, which decided the charge of theft which was the main charge to be innocent, and the charge of fraud which was the substitutive charge to be guilty, is appropriate.