“횡령” 개념에 관한 고찰

A Study on the Concept of “Embezzlement”

A person who has the custody of another’s property shall be punished as embezzlement, if he embezzles and refuses to return it [Articles 355 (1), 356, 359 of the Korean Criminal Act]. The legally protected interest in embezzlement is another’s ownership of property. This ownership means a right on the civil law, because the criminal law does not have his own concept of ownership. As a rule, another’s ownership is not deprived in our legal system, even though the custodian commits an embezzlement. So embezzlement is not to be interpreted as an depriving offense. Embezzlement is an endangering offense, especially an abstract endangering offense. By the way, embezzlement has a meaning of an unlawful acquisition. If this acquisition signifies what causes the transfer of ownership [legal acquisition], the custodian cannot consumate his crime. Embezzlement does not bring about the deprivation of another’s ownership in principle. Therefore, the acquisition that the concept of “embezzlement” involves must be figured out in practical sense [practical acquisition]. In this context, embezzlement is to be grasped as an act which realizes an intent to acquire unlawful ownership, and attempts to commit an embezzlement is to be acknowledged when an intent to acquire unlawful ownership is expressed objectively [theory of realization].