불법원인 급여물의 횡령죄 성부

Transfer of Property for Illegal Reasons from a Perspective Element of Embezzlement

First of all, because the main text of Article 746 in the Civil Law, applies to the case of taking of possession performance for illegal cause in discrete, an embezzlement, which needs other's property as its object, can't be established. In the case of the provisory clause of Article 746 in the Civil Law, and can't be in a trust relationship, which Criminal Law should protect. Therefore, the establishment ofembezzlement cannot be approved. The other side, when the trustee or recipient misappropriated trust for illegal cause or illegal purpose in discrete, the ownership of the trusted property remained under the hand of the thrustor because Article 746 in the Civil Saw, isn't applied to, it is others property from the viewpoint of the trustee. Therefore, key discussionsabout the establishment of embezzlement about trust for illegal cause or illegal purpose are related to the problem of the subject of an activity whether it is custody from the trust-confidence relationship. However, the trust relationship of an embezzlement forms illegal content and embezzlement is heavily punished compared to the embezzlement of an object separated from occupation, it should have a value to be protected by Criminal Law. Though a factual confidence relationship in trust from illegal cause or illegal purpose can be approved, but isn't based on callable confidence relationship, which should be protected by Criminal Law, the colation of that confidencerelationship can't be fomented by Criminal Law. therefore, embezzlement can't be established in this case.