사기죄 제한해석과 관련한 형사법적 쟁점 – 대상판결1: 대법원 2016. 6. 9. 선고 2015도18555 판결 – – 대상판결2: 대법원 2017. 1. 25. 선고 2016도18432 판결 –

This paper was written from the perspective of the ambiguity of the distinction between default and the fraud in criminal law. Therefore, I would like to develop the argument from the perspective that a restrictive interpretation is necessary. In the process, I theoretically explained the unique nature of fraud. This is because it is not easy to properly explain the different conclusions that the courts reach in different instances without defining the nature of fraud. This is true not only for fraud but also for breach of trust. In order for an omission to be established, it is necessary to go through Article 18 of the General Provisions of the Criminal Act to determine whether it has the same value as an act. However, there are several articles that can be considered to include the nature of an omission in the articles of the Criminal Act without going through Article 18 of the General Provisions of the Criminal Act, and the representative example is the crime of abandonment. According to Article 271 of the Criminal Act, abandonment would typically include not giving breast milk to a child or not supporting an elderly parent and abandoning them. This organic sun naturally includes not only acts of commission but also acts of omission, and in this process, it can be seen that the crime of omission is established even though the provisions of Article 18 of the Criminal Act are not followed. In criminal punishment for fraud, even if fraud is considered a mandatory crime, it is less mandatory than embezzlement or breach of trust, so when criminally punishing fraud, a more cautious approach should be taken than when criminally punishing embezzlement or breach of trust. After looking at two target judgments related to fraud, we analyzed why the target judgments found fraud not guilty and why fraud is found guilty and not guilty alternately in the process. The conclusion of this paper is that (omissive) fraud is basically classified as a obligatory crime and that a different approach should be taken from the crime of controlling conduct due to the nature of the obligatory crime. When we understand that even within the crime of obligation, fraud has a somewhat unique character compared to crimes such as embezzlement, breach of trust, and negligent omission, a more precise approach to fraud will be possible.