결제 전 상품의 소비와 불법영득의사의 성부 -일본 나고야 고법(名古屋高判 令和3年 12月 14日) 판결을 통하여-

In general, when purchasing items in a store, the product is consumed or consumed after payment. However, on the contrary, can theft be recognized if the product is consumed or consumed before payment? In other words, the question is whether theft can be established in the case of an act of consuming (consuming) a product displayed in a store even though there was an intention to pay for it. This is related to the intention to obtain the product illegally. If the product is acquired or consumed with the intention to obtain illegally, the crime of theft is established, but if the product is consumed before payment without the intention to obtain illegally, the issue is whether the crime of theft is established. In Japan, there has been a recent case that has been controversial in this regard. In other words, in the Okazaki South Store of a Japanese AEON supermarket, a person was indicted for theft for eating a piece of sashimi sold at a store in the same store and walking to the checkout counter to pay for it. The Japanese courts recognized the crime of theft in both the first and second trials. In other words, the court ruled that “since the defendant ate the product displayed in the store knowing that it was not permitted to eat it before paying for it, the defendant was found to have the intent to gain illegal gain.” Of course, if the act of consuming before paying increases as in the case, stores such as marts may cause a lot of confusion in selling products, and it is expected that there will be a lot of difficulty in operating the store because it will be difficult to distinguish and detect cases of theft. If a store owner uses a product that was released as a new product on YouTube or other online platforms and uses it without permission to make it widely known to the public and then returns it, it will be very embarrassing for the store owner. However, this confusion is a separate issue from the illegality of criminal law. Since the act of paying after consumption harms the smooth operation of the store (normal sale of goods), it is difficult to see that the act of consuming the goods was based on the intention of illegal acquisition, and therefore it seems difficult to treat it as theft. For example, if a product in a store is opened, filmed, uploaded to YouTube, and then put back in its place, it may be seen as a nuisance from the store's perspective, but it is somewhat difficult to recognize the crime of theft. In this case, the Japanese court recognized the crime of theft in both the first and second trials. However, in order to recognize the crime of theft, the awareness and intent to steal another person's property must be confirmed, and further, the intent to illegally acquire must be confirmed. In this case, of course, the product was consumed before payment, but since the intent to pay was sufficient, it seems somewhat difficult to treat it as the crime of theft. If there had been an intent to steal in this case, it is thought that the person would not have headed toward the checkout counter. In other words, it is difficult to see that the perpetrator had the intent to obtain illegally because he went to the checkout counter with the item in question, so it seems difficult to ultimately recognize theft. This paper examines the case law of the Nagoya High Court in Japan regarding the crime of theft in this case and examines whether the intent to obtain illegally was confirmed, thereby examining whether the legal doctrine of the crime of theft can be applied to the same case that often occurs in our society.