Defendant 1 shall be punished by imprisonment with prison labor for a period of one year and six months, and by imprisonment for a period of one year and four months for a crime set forth in Article 1(a) and (b) of the judgment of Defendant 2, and imprisonment for a period of two months for a crime set forth in

The number of days under detention prior to the pronouncement of the judgment below shall be 180 days including the penalty against Defendant 1.

The prosecutor's appeal against the defendant 1 is dismissed.

A. Grounds for appeal by the Defendants

(1) misunderstanding of facts and misapprehension of legal principles

(A) As to the Defendants’ breach of trust

Despite the following reasons, among the facts charged in this case, the court below found the Defendants guilty of the facts charged in paragraph (1) of this case, and determined it as the crime of breach of trust under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes. In so doing, the court below erred by misunderstanding the facts and misunderstanding the legal principles, and omitting the judgment.

① Defendant 1 did not intend to inflict damage on Nonindicted Party 1 by acquiring ownership of the instant real estate.

(2) In the case of revocation, etc. of fraudulent act by the injured party in Gwangju District Court 96 money19652, the injured party lost the benefit of time for the remainder of the obligation by failing to perform his obligation pursuant to the mediation clause in the case of revocation, etc. of fraudulent act, etc., and the due date arrives and Defendant 1 acquired the ownership of the instant real estate finally by completing principal registration for realization of the instant real estate. As such, the principal registration based on provisional registration in the name of Non-Indicted 2 of the above accused does not constitute a weak meaning of transfer, and thus

③ Defendant 1 sold the instant real estate at KRW 400 million, including the principal and interest of KRW 2.3 million, which he assumed against Defendant 2, in order to realize the instant real estate, as collateral, and the establishment of provisional registration was not established by the Defendants in collusion with the Defendants for the purpose of preventing Nonindicted Party 1 from returning the ownership of the instant real estate. Furthermore, due to the establishment of the above provisional registration, Defendant 1’s secured obligation against Defendant 1 with respect to Defendant 1 was reduced as the above purchase price and the remainder of Defendant 1’s secured obligation was non-mortgaged. Thus, Defendant 1 cannot be said to have obtained profits equivalent to the value of the instant real estate and caused damage equivalent to the same amount to the victim.

(4) Even if Defendant 1 disposes of the instant real estate to Defendant 2, and made a provisional registration with Defendant 2, constitutes a false declaration of conspiracy, it is invalid in relation to the victim, and it does not constitute a crime of breach of trust due to the lack of risk of issuing damages.

(5) The defendants make mistake that their actions do not constitute a crime under the law and there is a justifiable reason to believe that they do not constitute a mistake under the law as provided in Article 16 of the Criminal Act.

(B) As to Defendants’ attempted fraud

Of the facts charged in the instant case, despite the following reasons, the lower court found the Defendants guilty of attempted fraud under Paragraph 2 against the Defendants. In so doing, the lower court erred by misapprehending the legal doctrine and omitting judgment.

① Defendant 1, by misunderstanding the legal principles on the transfer of security by means of conciliation provisions, filed a lawsuit for transfer of land with the belief that ownership is acquired if the principal registration has been completed based on the provisional registration of Nonindicted 2 with respect to the instant real estate. Therefore, there was no perception that the court was deceiving

② Defendant 1 could seek delivery of the instant real estate to the victim in order to exercise the security right to the instant real estate. As such, Defendant 1 did not have any criminal intent to obtain possession gains of the instant real estate.

(3) The defendant's act does not constitute a constituent element of fraud and does not constitute illegality and constitutes a mistake of law under Article 16 of the Criminal Act.

(C) As to Defendant 1’s perjury

Although Defendant 1’s testimony is not only consistent with objective facts but also contrary to memory, the court below recognized Defendant’s testimony as perjury. The court below erred by misapprehending the legal principles on criminal intent of perjury and perjury.

(D) As to Defendant 2’s perjury

① On January 18, 200, the above defendant was aware of the fact that the procedure changed at the time of testimony at the Gwangju High Court's testimony was filed on July 26, 1991, and thus the contents of the defendant's testimony do not constitute a false representation contrary to his memory, and ② although there is no evidence to prove the facts charged as to the above defendant's perjury, the court below found the defendant guilty of the above defendant's perjury. In so doing, the court below erred by misunderstanding the facts and misunderstanding the legal principles.

(2) Unreasonable sentencing

Defendant 1’s failure to receive a claim from the victim, and considering other circumstances such as the motive and background of the instant crime, the Defendants’ previous convictions, and the relationship with the victim, the sentence imposed by the lower court against the Defendants is too unreasonable.

(c) Grounds for appeal by prosecutors;

(1) misunderstanding of facts

Although Defendant 1 was fully aware of the fact that the alteration of the loan certificate was not Nonindicted 1, the lower court, without reasonable grounds, rejected the statements of the witnesses corresponding to this part of the facts charged, and found Defendant 1 not guilty of this part of the facts charged, thereby violating the rules of evidence and leading them to a misunderstanding of the facts.

(2) Unreasonable sentencing

In light of the motive for the instant crime and the amount of damage, etc., the sentence of the lower court against Defendant 1 is too uneasible and unreasonable.

2. Determination:

A. Judgment on the misunderstanding of facts and misapprehension of legal principles by the Defendants

(1) As to the assertion that the acquisition of ownership by the principal registration does not constitute a crime of breach of trust

Where a creditor has made a provisional registration of a real estate for the purpose of securing a claim but failed to receive the repayment by the due date, and the principal registration of a transfer of ownership based on the provisional registration has been completed, unless there is any special agreement between the parties that the obligation ceases to exist if the debtor fails to repay the secured obligation at the due date, and that the ownership of the real estate is finally attributed to the creditor, such principal registration shall also be deemed to have been made for the purpose of securing a claim, and if the principal registration is made for the purpose of securing a claim, and even after the due date for the obligation expires, the debtor may at any time repay the obligation and request the creditor to cancel the principal registration based on the provisional registration and provisional registration before the creditor completes the settlement procedure by exercising the security right, even though the due date for the obligation expires, and if the secured party intends to dispose of the security at a reasonable price or take over the ownership of the real estate after the due date for the obligation becomes due, the secured claim shall not be deemed to have yet become extinct unless the principal and interest of the secured obligation is settled before the due date for repayment of the debtor.

(2) As to the assertion that Defendant 1 did not gain any benefit or incur any loss to the victim by making a provisional registration of the instant real estate granted to Defendant 2

In the case of the crime of breach of trust, the term "when property damage is inflicted on the property as well as on the case of causing the risk of property damage" includes not only the real loss but also the case of causing the risk of property damage. The creditor who received the registration of ownership transfer of real estate for the purpose of collateral security has a duty to restore the registration if the debtor performs his obligation before the procedure of settlement is completed. Thus, if Defendant 1 establishes a provisional registration against Defendant 2 without going through the procedure of settlement of the real estate in this case, it would result in the risk of actual damage equivalent to the value of the security and thus, the crime of breach of trust is established (see Supreme Court Decision 89Do1309, Nov. 28, 1989, etc.). Thus, the above assertion by the defendants is

(3) As to the assertion that the provisional registration of this case is invalid as a false declaration of conspiracy, and thus does not constitute a crime of breach

Since the act of breach of trust in the case of breach of trust is not required to be legally effective, even though the act of establishing provisional registration of the real estate of this case is null and void by law as a false declaration of conspiracy, it constitutes a crime of breach of trust in the case where the victim actually damages or the risk of causing property loss is caused, it constitutes a crime of breach of trust. Thus, the defendants' above assertion is without merit.

(4) As to the assertion of legal error

Even if the Defendants were to be mistaken that the Defendants’ act of breach of trust and attempted fraud did not constitute a crime under the laws and regulations, they cannot find any justifiable reason. Therefore, the Defendants’ assertion is without merit.

(5) The defendant's assertion that it was not a provisional registration made in the name of the defendant 2 with respect to the above real estate with the intention to prevent the defendant's non-indicted 1, etc. from returning the ownership of the pertinent real estate, the defendant 1 did not have the intent to inflict damage on the victim, and there was no awareness that the court was deceiving, and there was no criminal intent to obtain the possession profit of the instant real estate, and the defendants' act did not constitute a element of fraud

According to the evidence in the record, in light of the motive and circumstance of the instant crime and the circumstances before and after the instant crime, the Defendants were aware of the crime of breach of trust and the occurrence of damages at the time, and there was the awareness that the court is deceiving the land delivery lawsuit, and there was the criminal intent to acquire the possession profit of the instant real estate, and there is sufficient reason to acknowledge the Defendants guilty of the facts charged of the instant breach of trust and the litigation fraud. Therefore, the aforementioned assertion by the Defendants is not reasonable.

(6) As to Defendant 1 and Defendant 2’s perjury

According to the evidence in the record, it is sufficient to recognize the charge of perjury by the Defendants. Therefore, the Defendants’ above assertion is without merit.

B. Judgment on the prosecutor's assertion of mistake

원심판결에 의하면, 원심은 ① 피고인 1 작성의 1992. 4. 17.자 차용금증서 하단에 ' 공소외 3 귀하'라는 문구를 기재한 사람이 공소외 4라는 취지에 부합하는 선일인영필적지문감정원 작성의 필적감정서 사본의 증거능력을 배척하고, 증인 공소외 3, 공소외 4의 각 법정진술, 검사 및 사법경찰관 사무취급 작성의 공소외 3에 대한 각 피의자신문조서 사본, 사법경찰관 작성의 공소외 4에 대한 진술조서 사본의 각 진술기재, 제3회 및 제4회 공판조서 중 증인 공소외 1의 각 진술기재, 증인 진명수의 원심법정에서의 진술, 국립과학수사연구소 문서사진과 문서감정실 감정인 진명수 작성의 필적감정서 사본의 기재 등은 공소외 3과 공소외 4의 경찰에서의 진술이 서로 다르고, 그 후 공소외 3의 검찰 및 원심법정에서의 진술이 바뀐 점, 증인 최미숙은 원심법정에서 1999. 3. 24. 그의 남편 고만곤으로부터 공소외 1이 위 문구를 기재하였다는 말을 들은 적이 있다고 증언한 점, 고만곤도 경찰에서 1997. 3. 26. 송종원 법무사사무실에서 공소외 1이 위 문구를 기재하는 것을 목격하였다고 진술한 점, 고부곤도 광주고등법원 98나7116 대여금사건의 증인으로 출석하여 공소외 1로부터 그가 위 문구를 기재하였다는 말을 들었다고 증언한 점, 서울인영필적감정원 감정인 한승희 작성의 감정서, 중앙인영필적감정원 감정인 고원배 작성의 감정서, 한국인작가협회 감정인 김춘두 작성의 감정서 등의 기재에 의하면 위 문구의 기재는 공소외 1의 필적과 유사하다고 하고 있는 점 등에 비추어 믿기 어려워 공소외 1이 위 문구를 기재하지 않았다는 사실을 인정하기에 부족하고, ② 검사 및 사법경찰관 사무취급 작성의 공소외 3에 대한 각 피의자신문조서 사본, 사법경찰관 작성의 공소외 1에 대한 피의자신문조서 사본의 각 진술기재, 사법경찰관 작성의 공소외 4에 대한 진술조서 사본의 진술기재, 각 재항고기록 사본, 각 불기소장표지 및 불기소이유서 사본, 불기소·기소중지 사건기록 사본, 각 고소장 사본, 사법경찰관 작성의 의견서 사본의 기재를 종합하여, 피고인 1은 공소외 1 및 고인곤이 1997. 2. 28.까지 5억 원을 지급하지 아니하자 같은 해 3. 5. 이 사건 부동산에 관한 본등기를 경료하고 같은 달 6. 피고인 2에게 가등기를 경료하였으며, 피고인 1의 처 공소외 2는 같은 달 14. 공소외 1을 상대로 토지인도청구소송을 제기한 사실, 공소외 1은 같은 달 22. 피고인 1, 공소외 2를 위하여 금 1,075,972,603원을 공탁하였고, 피고인 1은 같은 달 31. 위 공탁금 중 공소외 3, 고만곤 등에 의하여 가압류된 금액을 제외한 금 740,086,302원을 출급한 사실, 피고인 1은 같은 해 5. 6. 공소외 3이 위 문구를 기재하였다고 주장하면서 동인을 사문서위조죄 등으로 고소하였다가 수사과정에서 공소외 4가 자신이 위 문구를 기재하였다고 진술하여 공소외 3은 검사로부터 혐의없음 불기소처분을 받고, 항고 및 재항고하였으나 모두 기각된 사실, 피고인 1은 1998. 9. 2. 공소외 4가 위 문구를 기재하였다고 주장하면서 동인을 사문서위조죄 등으로 고소하고, 1999. 1. 26. 다시 공소외 1이 위 문구를 기재하였다고 주장하면서 동인을 사문서위조죄 등으로 고소하였으며 각 그 수사과정에서 고만곤이 위 문구를 기재한 사람은 공소외 1이라고 진술한 사실, 고부곤은 같은 해 10. 2. 광주고등법원 98나7116 사건의 증인으로 출석하여 공소외 1이 위 문구를 기재한 사실을 알고 있다고 증언한 사실, 피고인 1은 2000. 2. 7. 공소외 1이 위 문구를 기재하였다고 주장하면서 이 사건 고소를 한 사실을 각 인정한 다음, 위 사실에 비추어 보면, 피고인 1은 이 사건 고소 당시 공소외 1이 위 문구를 기재하지 않았다는 사실을 알았다거나 알 수 있었다고 보기 어렵고, 달리 이를 인정할 만한 증거가 없으므로, 이 사건 공소사실 중 피고인 1에 대한 무고의 점은 범죄의 증명이 없는 경우에 해당한다는 이유로 무죄를 선고하였는바, 이 부분을 기록과 대조하여 검토하여 보면, 원심의 위와 같은 판단은 정당하고, 거기에 채증법칙 위배로 인한 심리미진 및 사실오인의 위법이 있다고 볼 수 없으므로, 검사의 위 주장은 이유 없다.

C. Ex officio determination

According to the judgment on the assertion of unfair sentencing by the Defendants and the prosecutor's authority prior to the judgment on the argument of unfair sentencing, according to the statement on the result of confirmation of the fixed date of preparation of Kim Young-soo's assistant prosecutor's office which is bound to the trial records of the Gwangju High Public Prosecutor's Office, the defendant 2 received a summary order of KRW 700,000 from the Gwangju District Court on September 1, 1997 and the above order became final and conclusive on September 11, 1997. The defendant 2's judgment No. 1-A, and Article 37 of the Criminal Act are related to the above crimes for which summary order became final and the latter part of Article 37 of the Criminal Act.

3. Conclusion

Therefore, the judgment of the court below is reversed under Article 364(2) of the Criminal Procedure Act without examining the defendants and the prosecutor's assertion of unfair sentencing, and the judgment below is again decided as follows.

Criminal facts and summary of evidence

The summary of the facts charged and evidence acknowledged by this court is as follows: "Defendant 2" in Part 2 of the first head of the facts charged in the judgment of the court below, "the person engaged in the singing practice room business" following the following, shall be deemed as "the person who was sentenced to a fine of KRW 700,000,000 for violation of the Punishment of Violences, etc. Act at the Gwangju District Court on September 1, 1997, and the above order was confirmed on September 11, 1997," and "the report on the result of confirmation" in the last summary of the evidence, and "the report on the result of confirmation of the fixed date of preparation of the Prosecutor General Kim Young-young" is the same as the corresponding column of the judgment of the court below, and

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Each Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 355(2) and 30 of the Criminal Act (Misappropriation of Trust), Articles 352, 347(1), and 30 of the Criminal Act (Attempted Fraud, Selection of Imprisonment, etc.), Article 152(1) of the Criminal Act (Article 152(1) of the Criminal Act, including perjury, and the points of perjury by

1. Handling concurrent crimes;

The latter part of Articles 37 and 39(1) of the Criminal Act (trade between the crimes of each of the judgment of Defendant 1 and the violation of the Punishment of Violences, etc. Act of the first head on which the judgment becomes final and conclusive, and the crime of Article 1-A and (b) of the judgment of Defendant 2 and the violation of the Punishment of Violences, etc. Act of the

1. Aggravation of concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (In case of Defendant 1, the punishment shall be increased by the penalty prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, the punishment of Defendant 1, Article 1-A of the decision of Defendant 2, and the punishment shall be increased by the penalty prescribed in

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (the defendants have no criminal record of the same kind of punishment and no criminal record of the defendants, and all other circumstances leading to the defendants' crimes of this case)

1. To include days of pre-trial detention (Defendant 1);

Article 57 of the Criminal Act

1. Sentencing Defendant 2

Although the sentence for the crime No. 1-A, B, as stated in the judgment against Defendant 2, cannot be imposed under the sentence of one year and six months even after discretionary mitigation, as long as the sentence for the crime No. 3 as stated in the judgment due to the first head's previous conviction in the judgment, has to be determined separately, and as long as the sentence for the crime No. 3 as stated in the judgment is sentenced to two months, in this case where only the above Defendant appealed, a sentence of imprisonment with prison labor for the crime No. 1-A and one year and four months shall be imposed under Article 368 of the Criminal Procedure Act.

Judges Park Jong-dae (Presiding Judge) only on the part of the judge Park Jong-chul.