재물의 개념과 금전의 특수성

Among property crimes, theft, embezzlement, and receiving of stolen goods only define chattel as the object of action. And for these property crimes to be established, there must be an intention of illegal acquiring. Intention of illegal acquiring is recognized only if the exclusion of safekeeping is permanent. For example, if you secretly take someone else's bankbook to a bank teller, withdraw cash, and then put the bankbook back in its place, Intention of Illegal Acquiring of the bankbook itself is not recognized. According to judgment, the act of secretly taking another person's bankbook to a bank teller, withdrawing cash, and then putting the bankbook back in its place is considered theft. The bankbook's ability to prove the deposit amount has been violated. So, it means that the bankbook's deposit verification function corresponds to chattel. However, the bankbook's deposit proof function is neither a physical object nor a power that can be managed, so it cannot be called chattel. There is a problem with the judgment that considers the deposit verification function of a bankbook to be chattel. This is because it contradicts judgment that clearly state that deposit claims are pecuniary profit, not chattel. It also conflicts with judgment that state that if you secretly take out another person's debit card, use that card to transfer money to your own account through a bank transfer, and then return the card, the crime of theft does not apply to the card itself. This contradiction in judgment is impossible to resolve at the level of interpretation theory. There is already a precedent in the area of theft where difficult-to-solve problems related to Intention of Illegal Acquiring have been resolved through legislation. The issue was that if someone else's car was driven briefly without consent and then put back in its place, the person could not be punished for theft because there was no Intention of Illegal Acquiring. This problem was resolved by adding new punishment provisions for illegal use of automobiles in Article 331-2 of the Criminal Act. I think it is most reasonable to solve this problem by creating a new punishment for the act of secretly taking someone else's bankbook to the bank, withdrawing cash, and then putting the bankbook back in its place. I think it would be appropriate to add a new punishment provision for illegal use of deposit claims in Article 331-3 of the Criminal Act with the following text. ‘A person who reduces the total amount of the deposit claim by exercising another person’s deposit claim without authority shall be punished by imprisonment for not more than 6 years or by a fine not exceeding 10 million won.’