도품인 장물의 보관을 의뢰받은 사람의 임의처분행위에 대한 고찰

The Supreme Court has ruled that in cases where stolen property is arbitrarily disposed of while under custody, the crime of storing stolen property or the crime of storing stolen property through occupational negligence are recognized. However, the act of embezzlement does not constitute a separate offense, as it is considered a non-punishable subsequent act. This ruling appears to align with the 1922 decision of Japan’s Supreme Court of Judicature. However, the embezzlement committed by a person storing stolen property does not meet the criteria for the crime of embezzlement under Article 355(1) of the Criminal Act, but rather fulfills the elements of the crime of embezzlement of lost articles under Article 360(1) of the Criminal Act. The relationship between a thief and a receiver of stolen property involves acts punishable as crimes concerning stolen property under criminal law and does not warrant legal protection. Furthermore, entrustments are not recognized between the victim of the primary crime and the receiver of stolen property. Given that the illegality of the crime of embezzling lost articles is subsumed under the crime of storing stolen property, it is reasonable to conclude that the embezzlement committed by the receiver of stolen property constitutes the crime of embezzlement of lost articles and is, therefore, a non-punishable subsequent act. This conclusion would remain the same even if the offender embezzles the proceeds from the sale of the stolen property. On the other hand, in cases where stolen property is arbitrarily disposed of without knowledge that it is stolen, it is more reasonable to view such cases as constituting the crime of embezzlement of lost articles. Korea’s Criminal Act provides for the crime of storing stolen property through occupational negligence. From the perspective of the original owner, the situation is no different when the property in question is lost. Recognizing the crime of embezzlement in such cases would conflict with the legislative intent, which has set similar statutory penalties for the crimes of embezzlement of lost articles and storing stolen property through occupational negligence.