판례에 의한 민사의 형사화의 개선방안 - 차용금 사기죄를 중심으로 -

초록

The over-criminalization and the over-penalization by the legislation have continually critisized as serious problems for the several decades in Korea. But the over-criminalization and over-penalization by case law are, I think, more serious problems than by the legislation. Examples of the excessive criminalization and the excessive penalization based on the precedents include ‘the criminalization of civil affairs’, and a typical example of ‘the criminalization of civil affairs' is that the court recognizes borrowing fraud guilt too broadly and too easily in a financial loan. In case that the borrowed money is not repaid, the korean courts have too easily pled the debtor guilty of the fraud. The use of a credit card also belongs to a kind of monetary loan. Therefore in the case that the credit card user fails to pay the bill, there is also the same problem. This article analyzes the precedents of Korean Supreme Court for borrowing fraud that have caused ‘the criminalization of the civil affair’ and pointed out that our precedents too broadly acknowledge the deception and intentions of borrowing fraud. On the basis of these analyzations, as an improvement measures are suggested as follows. As a fraud crime is a property crime, so the deceptive acts are limited when the debtor is lack of a reimbursement will or a reimbursement ability. Further, the terms of the loan, such as interest rates, must also be considered in acknowledging the deliberate acts and the intentions of deception.

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