[공문서위조,공문서위조행사,사문서위조,사문서위조행사,특정경제범죄가중처벌등에관한법률위반,사기,공정증서원본불실기재,공정증서원본불실기재행사,특정범죄가중처벌등에관한법률위반,뇌물공여][집35(2)형,648;공1987.10.1.(809),1485]
settlement in a lawsuit against the land owned by a third party and the crime of fraud in a lawsuit
In so-called litigation fraud, the judgment of the court, which is the defrauded, should have the same effect as that of the victim's dispositive act in lieu of the victim's dispositive act, and, except for that, it cannot be said that there is an act of giving property by mistake and therefore it is not a crime of fraud. Accordingly, in case where the defendant, in collusion with the State, etc. as the owner Eul in collusion with Eul, brought a lawsuit for the execution of ownership transfer registration procedure against the above land in collusion with Eul, and had the court prepare a protocol of compromise to the effect that Eul implement the procedure of ownership transfer registration for the above land by receiving and repaying the proceeds of the lawsuit, and let the two legal representatives, etc. in the course of the lawsuit, etc. of the lawsuit, settle the above land Eul, and have the court completed the protocol of compromise to the effect that Eul implement the procedure of ownership transfer registration for the above land, such settlement in the lawsuit shall be effective only between the parties to the lawsuit, and the third party's ownership for the above land is not transferred
Article 347 of the Criminal Act
Defendant 1 and one other
Defendants
Attorney Kim Jong-soo, Kim Jin-ok
Seoul High Court Decision 87No712 delivered on May 5, 1987
The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Seoul High Court.
Defendant 2’s appeal is dismissed.
1. Defendant 2’s grounds of appeal are examined as follows.
According to the evidence adopted by the court of first instance as cited by the court below, it can be sufficiently recognized that the facts of the judgment against the defendant are the facts of the judgment, and there is no error of misconception of facts or lack of reasoning due to the violation of the rules of evidence, such as the theory of lawsuit, and incomplete
2. Defendant 1’s defense counsel’s grounds of appeal
The court below accepted the judgment of the court of first instance, acknowledged that the defendant conspired with the non-indicted 1 in collusion with the non-indicted 2 as the owner of the land in this case, which is the ownership of the country, etc., in order to realize that the land in this case was unregistered, the defendant acquired the four parcels of the above real estate by using a protocol of compromise to the effect that the non-indicted 1 would implement the procedure for the ownership transfer registration of the four parcels of land from the non-indicted 1 and the non-indicted 2 would be the plaintiff and the defendant purchased the above land from the non-indicted 2, who was the owner of the non-indicted 2, who was the owner of the Dong branch of the Seoul District Court, the non-indicted 2, the defendant, and applied the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) to the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud).
However, in the so-called lawsuit fraud, the judgment of the court, which is the defrauded, should have the content and effect in lieu of the victim's dispositive act, and in other cases, it cannot be said that there is an act of giving property by mistake, so it does not constitute fraud. Therefore, in this case, the effect of settlement in the lawsuit, as recognized by the court below in this case, is effective only between the litigants, and it does not extend to the land owner who is a third party, and the third party's ownership on the land in this case is not transferred to the non-indicted 1, so such act
However, the judgment of the court below which divided this into fraud is erroneous in the misunderstanding of legal principles as to fraud, and the judgment below is liable for concurrent crimes different from the above fraud crime under the former part of Article 37 of the Criminal Act. Thus, without examining the defendant's grounds for appeal, the judgment below cannot avoid reversal in this regard.
3. Therefore, the part of the judgment of the court below against Defendant 1 is reversed, and that part of the case is remanded to the Seoul High Court which is the court below. Defendant 2's appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.
Justices Choi Jae-ho (Presiding Justice)