1. First of all, I intend to review the elements of fraud crime in Article 347 of criminal law and the meaning of ‘issuing act · issuing intention’(Ⅱ). I try to investigate the meanings of theories on why we use ‘act and intention of disposal’, which is not specified in the law, and what ‘issuing act · issuing intention’ means. In addition, I intend to analyze fraud related precedents of Supreme Court(Ⅲ). I am going to organize Supreme Court’s position of precedents from 1970s to February, 2017, and understand the tendency. Next, I will analyze majority opinions and minority opinions of the supreme court decision on fraud in February, 2017, which is the subject decision of this study(Ⅳ). I try to research from what perspectives the demonstration is done. I also consider the problems and improvement plans of the supreme court decision’s changing precedents. I will suggest an independent legislative change in the principles of safety, reliability and retroactive prohibition(Ⅴ). Lastly, I will consider the problems and improvement plans of Supreme Court sentencing’s sentences(Ⅵ). I will summarize the above contents at the conclusion(Ⅶ). 2. The supreme court decision, Supreme Court 2017. 2. 16. Decision 2016Do13362, changed the existing opinions. The following is the summary of the supreme court decision: “The disposal intention is enough if the deceived who is in the mistake recognizes what he or she is doing. It is not necessary to recognize the result of the act. The act of the deceived who sealed and signed on the disposal document can be considered as disposal act. Even though the deceived didn’t recognize the specific details or legal effects of the disposal result, or the document, he or she recognized the act of sealing and signing on the disposal document, so the disposal intention of the deceived is also acknowledged.”(the precedent that confirmed the theory of issuing intention necessity and the theory of issuing act recognition) 3. I agree with the conclusion of the majority opinion. The meaning of the Supreme Court decision is that the deceived(victim) needs issuing intention, and the issuing intention contents are enough with issuing act recognition(in the expression of academic field and precedents, the theory of disposal act recognition, issuing situation recognition, damage causing recognition). “The victim and 7 others fell into an error due to the defendant’s deceiving act, so the deceived sealed and signed on the written application for registration of the right to collateral security settings needed for the defendant to loan 100 million won by mistaking for a document for furnishing of security for 30 million won, and the deceived had financial damages. Therefore, the act of the victim is also considered as disposal act in the crime of fraud.” This arranges many controversies clearly. I think the crime of fraud should be legally interpreted from the perspective of a person who performs the act. If the deceiving recognizes the issuing act of the deceived(victim), the deliberation can be acknowledged by subjective elements of a crime. 4. I think many precedents about Supreme Court’s ‘disposal intention and disposal contents of fraud’ had problems. It shouldn’t be interpreted too strictly under the term of ‘swindling signature’. Writing ‘document’ in deception or being issued with ‘seal’ and ‘authentication certificate of one’s seal’ is totally different from simple ‘document related crime’. The criminal intention at the time of act is different, and the risk of the second act of infringing the rights is very high. If too strict interpretation is done in the objective elements of a crime because the issuing act of the deceived is too concentrated, the criminal law can’t defend law and order.

Procedural fraud is a type of a so–called triangular fraud targeting to mislead the judgment of the court, which differs from the structure of a general fraud in that it has some aspects of deeming it sufficient to satisfy its constituent elements. When a broad-minded approach is taken to interpret the element of ‘pecuniary advantage’ in the context of fraud, it is not impossible to construct a theory that procedural fraud in compulsory execution is consummated when a judgment of the executive court at the intermediate stage of the enforcement process is identified as such ‘pecuniary advantage’. However, since the compulsory execution procedure is a series of procedures in which various actions are cumulatively carried out to satisfy the claim based on court judgment/arbitral award which has become final and conclusive, the time of consummation should be when the claim is satisfied or when the compulsory execution procedure terminate. Regarding the time of consummation of procedural fraud, which is related to the issuance of a collection order in a compulsory execution procedure, it is insufficient for the execution creditor merely to obtain an issuance of a collection order but further need the satisfaction of claim by actually collecting the seized claim etc.

Korea Criminal Act(KCA) Art. 315(Interference with Auction or Bidding) reads as follows: “A person who interferes with the impartial conduct of an auction or a bid through fraudulent means or by the threat of force or by other means, shall be punished by imprisonment for not more than two years or by a fine not exceeding seven million won.” So when a person(or a bidder) unlawfully manipulates computer programs of the agency calling for bids in order to obtain information about a minimum bidding price so that he can win the contract for sure. In the present case handed down by the Suprem Court of Korea, the defendants(bidder and manipulators) are found not guilty of Fraud by Use of Computer, etc(Art. 347-2 KCA) because a directness between a data processing and a property taking. The present paper agrees with the opinion of the Court, and moreover denies the violation of Fraud(Art. 347 KCA) in that the conduct does not make pecuniary loss to the agency. A bid-rigging is punishable by the Art. 315, and a violation of the Korean Anti-monopoly law and Construction law as well.

By Medical Service Law(below, abbr as ‘Law’), the medical institutions should be established and run by ‘the doctors or the qualified persons’(below, abbr as ‘doctors’), who are permitted by the related laws. And there is a case such as non-doctors establish the institutions, hire doctors and run the institutions, or non-doctors and doctors co-establish the institutions and run the institutions. This kind of act is treated as violations under Law. When, in their running the institutions, doctors treat the patients, which means doctors give the patients the medical care in place of National Health Insurance Service(below, abbr as NHIS), doctors ask the costs of the medical care to NHIS. If the costs of the medical treatment(the medical care) do not exist or are exaggerated, the act of asking the costs will constitute Fraud. But if doctors in such institutions described above treat the patients fairly, and then ask NHIS the costs with no falsity or exaggeration, does that act constitute Fraud? This kind of act has not been treated as Fraud until 2013. But from the second half of 2013, this kind of act has been prosecuted as Fraud. Is that prosecution right? Is it guilty as Fraud? Medical treatment has a broad effecion on the health and welfare of people, so business mind should be excluded from medical treatment. And Law has regulations on the qualification of establishing the institutions to prevent the substantial distortion of medical treatment. But if doctors’ treatment is true, which means there is no falsity or exaggeration in medical treatment, then there can not exist the substantial distortion. And the article 57 ① of Law regulates ‘trick or the other undue method’, but I think this kind of act does not conform to the article 57 ① of Law. And even if this kind of act conforms to the article 57 ① of Law, it does not mean that it is Fraud. Because Fraud has the strong character of mala in se, transcendentally the act of Fraud should be evaluated anti-social and immoral. But this kind of act can not be assessed anti-social and immoral transcendentally. And the criminal control on this kind of act can not be the fundamental measure to prevent the financial aggravation of NHIS. And because this kind of act is treated as violations under Law, if the punishment of Fraud is added, it could violate the principle of proportion or principle of subsidiarity.

In this article, we analyze the decision of the Supreme Court in Korea with respect to the unauthorized modification of information and the immediacy of property disposal in a computer fraud critically. In the mentioned case, the defendant was charged with unlawful behavior to change the information by installing a hacking program on electronic bidding system of an administrative office. The author evaluated the defendant‘s conduct at issue not as an unauthorized change of information, but as an input of false information or illegal command input for computer. In terms of the immediacy of property disposal, this paper contends that we can’t say that computer fraud doesn’t hold, without exception, if a person involved in the property disposal process. In order to determine whether the computer fraud is established, we have to analyze the contents of the involved individual’s action in detail.

Der Untreuetatbestand steht seit geraumer Zeit in Zentrum der Aufmerksamkeit von Fachwelt und Öffentlichkeit. Der Untreuetatbestand sichert in allen Fällen ein im Grunde einfaches gesetzgeberisches Anliegen. Das Untreuedelikt soll insofern die Untreue nur dann strafbar sein, wenn der Täter, der die Geschäfte anderer verfügt, den Vorsatz, Vermögensschaden anderer herbeizuführen. In Hinblik auf den objektiven Tatbestand hat aber der Oberste Gerichtshof trotz der ausdrücklichen Regelung der Versuchsstrafbarkeit(§359 korStGB) auch das Untreuedelikt als Gefährdungsdelikt erfassen, so dass die Versuchshandlung nicht mehr zu bestrafen ist.24)Ob eine Tat die Tateinheit oder Tatmehrheit ist, ist ein wichtiges Problem. Weil die Konkurrenzlehre ist ein Problem nach der Entstehung einer Tat, soll die Entscheidung darüber eine rechtliche Würdigung sein. Ob eine Tat die Tateinheit oder Tatmehrheit ist, und ob eine Tat die Idealkonkurrenz oder Realkonkurrenz ist, soll nach anderem Massstab beurteilt werden. Darfür gilt es den Massstab über die natürliche Lebensauffassung. § 40 des koreanischen StGB lautet “verletzt dieselbe Handlung mehrere Strafgesetze, so wird die Strafe nach dem Gesetz bestimmt, das die schwerste Strafe androht“, also das regelt die Idealkonkurrenz. Trozdem sind viele Fragen nach der Idealkonkurrenz noch zu beantworten, insbesondere gibt es grosse Unklaheiten über ihre Bedeutung, Voraussetzungen, Arten, Rechtsfolge, Klarstellungsfunktion, und Genugtuungsfunktion.In vorliegende Arbeit wird über das Konkurrenzverhältnis zwischen Untreu und Betrug behandelt. Nach dieser Arbeit soll eine Handlung des Idealkonkurrenzes im Sinne der natürlichen Lebensauffassung ausgelegt werden.