On July 13, 2002, the defendant, as the representative director of the Shinwon-ri (mutual omitted) corporation located in Gangnam-ri, the defendant seized the site where the victim non-indicted 1 was located in Suwon District Court 2002Kadan17612 on July 13, 2002, which was the provisional seizure order of the real estate owned by the above company, and the defendant was at the risk of 21 units out of 45 apartment units (name omitted) that the above company extended the above site and planned to sell to the military unit. The defendant was at the risk of 20 million units out of 45 apartment units that the above company was expected to sell to the military unit. The defendant was at the risk of the victim's cancellation of the provisional seizure even though the above provisional seizure did not have the intent or ability to pay 7 million won to the victim, and the provisional seizure would not have been effected on October 9, 2002, the victim would have been ordered to pay the above provisional seizure of the real estate within 10 million won.

2. The judgment of the court below

For the following reasons, the lower court acquitted the Defendant on the ground that the facts charged in the instant case constituted a case without proof of criminal facts.

Fraud is established by deceiving others and acquiring property or pecuniary benefits from the defective intent. However, according to the record, Nonindicted Party 1 submitted a confirmation document of Nonindicted Party 2’s preparation to obtain the provisional seizure order of this case, which is the right to preserve the claim amounting to KRW 30 million. Nonindicted Party 2 re-written out a confirmation document that the above fact confirmation was made voluntarily by Nonindicted Party 1 regardless of his/her will, and Nonindicted Party 1 then filed a lawsuit against the Defendant for the claim for construction cost of KRW 27 million out of the above preserved right (the amount of KRW 3 million deducted by the Suwon District Court Decision 2005No52425) but it can be acknowledged that the provisional seizure order of this case was revoked on the ground that there is insufficient evidence to acknowledge the existence of the source of claim (the claim related to construction, agreed amount of money, or obligation for acquisition). Ultimately, the provisional seizure order of this case cannot be viewed as having been cancelled due to the Defendant’s or the person having the right to claim for the provisional seizure, which is a security value of the real property.

3. The judgment of this Court

However, we cannot accept the above decision of the court below for the following reasons.

Since fraud is established by deceiving others, making them omitted into mistake, inducing them to dispose of property and gain economic benefits by inducing them, it is an act of disposal of property (see, e.g., Supreme Court Decisions 9Do1326, Jul. 9, 199; 2000Do4419, Nov. 22, 2002). Accordingly, when a person who has completed provisional attachment execution of real estate after having received a decision of provisional attachment of real estate cancels the provisional attachment, he obtains the benefit that would possess the real estate without any burden of provisional attachment. Therefore, the provisional attachment cancellation also constitutes a property disposal act in fraud, and even if it is found that there was no claim to be preserved for provisional attachment thereafter, it cannot be deemed that there was no economic benefits from the cancellation of provisional attachment (see, e.g., Supreme Court Decision 2006Do4400, Nov. 11, 2007).

Nevertheless, the court below acquitted the charged facts of this case on the grounds as stated in its reasoning, which erred by misapprehending the legal principles as to the property interest in fraud, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-hyung (Presiding Justice)