손괴죄에서의 「은닉」에 대한 고찰 -문서의 경우를 중심으로-

An Examination of the Crimes of the Concealment and the Destruction and Damage of Documents

According to Article 366 of Korea’s Criminal Act, anyone who reduces the utility of another person’s documents by concealing them is punished for the crime of destruction and damage. The German Penal Code stipulates the concealment of documents as a type of the crime of forgery (Article 274 No. 1). In contrast, the Penal Code of Japan punishes the same act as a crime of destruction and damage by interpretation although there is no clear stipulation (Articles 258 and 261). Because the Korean Criminal Act stipulates that the concealment of documents constitutes a crime of destruction and damage, it can be seen as closely related to the Penal Code of Japan. The present study sought to seek the origins of the stipulation of the concealment of documents as a crime of destruction and damage by tracing the process of revising the Penal Code of Japan. In 1880, the Penal Code of Japan stipulated the damaging of documents in a chapter on the “Crimes of Counterfeiting of Documents” and another one on the “Crimes of Destruction and Damage,” respectively. In contrast, the Penal Code of Japan of 1907 transferred the damaging of documents to a chapter on the “Crimes of Destruction and Damage.” However, the Supreme Court of Judicature of Japan has ruled from the past that the crime of destruction and damage can be established in the case of the violation of the utility of things even without direct damage to them. In addition, from a similar perspective, the Supreme Court of Judicature of Japan has stated that the concealment of government documents, too, constitutes a crime of damaging government documents. On the other hand, prevalent views in Japan likewise have supported this opinion. Accommodating such judicial precedents and prevalent views, the revision draft of the Japanese penal code of 1940 stipulated the crime of destruction and damage as the act of “destroying or damaging another’s property, and consequently injuring its utility.” The Korean Criminal Act can be seen as having inherited this. When such a process is examined, the following facts become apparent. First, “concealment” in the crime of destruction and damage is related to the “dispossession of things” in German criminal jurisprudence. Consequently, in interpreting “concealment,” it is necessary to examine related discussions. Second, such a legislative form ultimately seems to originate from the opinion that the intention of illegal acquisition is necessary to establish property crimes. In other words, the intention of illegal acquisition can be said not to stop on a theoretical level but to have been turned into positive law, albeit indirectly.