배임수재죄에 있어서 ‘사무의 내용’에 관한 고찰 - ‘재산상 사무’로 제한해야 하는가? - (A Review on the content of “another's business” in the crime of “Receiving Bribe by Breach of Trust”)

서지정보

· 발행기관 : 한국형사판례연구회
· 수록지 정보 : 형사판례연구 / 20권 / 418 ~ 440페이지
· 저자명 : 김봉수

초록

In the Korean Criminal Act Article 355 ②, it is provided that a person who, administering another’s business, obtains pecuniary advantage or causes a third person to do so from another in violation of ones duty,thereby causing loss to such person, shall be punished by penal servitude for not more than five years or by a fine not exceeding fifteen million Won. On the one hand, in Article 357 ①, it is specified that a person who, administering another’s business, receives property or obtains pecuniary advantage from a third person in response to an illegal solicitation concerning his duty, shall be punished by imprisonment for not more than five years or by a fine not exceeding ten million won.
Two crimes have one thing in common with reference to principal agent of each crime. But the content and range of “another’s business” in Article 355② is one thing, the “another’s business” in Article 357① is quite another. The reason is as follows. (1) while the former is property crimes, the latter is a kind of bribery crimes, (2) The crime of Article 355② is required a particular relevance with the contents among crime constitutions such as the protecting benefit, act, result. Thus, the content and range of “another’s business” in Article 355② must be a business appertaining to the property. But, as regards an interpretation of the “another’s business” in Article 357 ①, there is no necessity for restricting that content to a business appertaining to the property, because it doesn’t exist a particular relevance with the contents among crime constitutions in Article 357 ①.

영어초록

In the Korean Criminal Act Article 355 ②, it is provided that a person who, administering another’s business, obtains pecuniary advantage or causes a third person to do so from another in violation of ones duty,thereby causing loss to such person, shall be punished by penal servitude for not more than five years or by a fine not exceeding fifteen million Won. On the one hand, in Article 357 ①, it is specified that a person who, administering another’s business, receives property or obtains pecuniary advantage from a third person in response to an illegal solicitation concerning his duty, shall be punished by imprisonment for not more than five years or by a fine not exceeding ten million won.
Two crimes have one thing in common with reference to principal agent of each crime. But the content and range of “another’s business” in Article 355② is one thing, the “another’s business” in Article 357① is quite another. The reason is as follows. (1) while the former is property crimes, the latter is a kind of bribery crimes, (2) The crime of Article 355② is required a particular relevance with the contents among crime constitutions such as the protecting benefit, act, result. Thus, the content and range of “another’s business” in Article 355② must be a business appertaining to the property. But, as regards an interpretation of the “another’s business” in Article 357 ①, there is no necessity for restricting that content to a business appertaining to the property, because it doesn’t exist a particular relevance with the contents among crime constitutions in Article 357 ①.

참고자료

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