[2] The meaning of “abstination” under the Criminal Act, and whether larceny is established by committing an act of excluding possession against the possessor’s will even if the right to request the delivery based on an agreement is acknowledged (affirmative)

[3] Whether “goods not owned by oneself” can be the objects of obstruction of another’s exercise of rights (negative)

[2] A theft under the Criminal Act refers to the removal of possession of a person other than himself/herself from possession against the will of the possessor and the transfer of possession to his/her or a third party. Even if the right to claim delivery, etc. based on the agreement is acknowledged, larceny is established by excluding possession against the will of the possessor, unless it is acknowledged that the possessor explicitly and implicitly consented to the transfer of possession at the time of possession.

[3] The crime of obstructing another’s exercise of right under Article 323 of the Criminal Code is established by interfering with another’s exercise of right by taking, concealing, or destroying “the one’s own property” which is the object of another’s possession or right. Thus, if an article taken, concealed, or damaged is not “the one’s own property”, there is no room for interference with exercise

A. Regarding ground of appeal No. 1

The sale and purchase of movable property refers to the sale and purchase of movable property under a special agreement to reserve ownership to the seller until the purchase price is paid in full. Such a contract is derived from the intent of the seller of movable property to acquire and maintain the effect of security for the claim for payment until the seller receives the purchase price in full. Therefore, in the event that ownership is transferred by registration as real estate, it is possible to function as security by failure to pay the purchase price until the full payment is made. Therefore, the concept of sale and purchase of the reserved ownership is unnecessary. On the other hand, unless the seller completes the registration of ownership transfer to the buyer, the ownership belongs to

On the other hand, although motor vehicles, heavy machinery, etc. are movable property, ownership is transferred by registration as well as real estate, and ownership transfer requirement is also the requirement of ownership transfer like the registration of real estate, so there is no need to invoke the concept of ownership transfer.

Supreme Court Decision 9Da30534 Decided September 7, 1999, alleged in the grounds of appeal, held that the seller may claim ownership of an object against not only the buyer but also a third party until he/she receives the price in full, barring any special circumstances, even if the object of the sale of movable property is handed over to the buyer, but also the seller may claim ownership of the object until he/she receives the price in full. However, such a legal principle should be deemed not to apply to automobiles, heavy machinery,

Therefore, in the case of “hump truck” as indicated in the judgment of the court below, even though there was a special agreement between the purchaser Nonindicted Co. 1, the seller Nonindicted Co. 2, and the installment financing company, to the effect that its ownership is reserved until the full payment of the principal and interest of the loan to Nonindicted Co. 3, the ownership should be deemed to be externally reverted to Nonindicted Co. 1, insofar as the ownership was registered in the name of Nonindicted Co. 1’s company. On the contrary premise, the argument that the ownership of the installment truck was reserved to Nonindicted Co. 3, and thus, Nonindicted Co. 1 is not an external owner cannot be accepted.

B. Regarding ground of appeal No. 2

A theft under the Criminal Act refers to the removal of possession from one’s possession against the will of the possessor and the transfer of possession to one’s or a third party. Even if the right to claim delivery, etc. according to the agreement is acknowledged, larceny is established by an act of excluding possession against the will of the possessor, unless the possessor’s explicit and implied consent is acknowledged to the transfer of possession at the time of possession (see Supreme Court Decision 2001Do4546, Oct. 26, 2001).

Before the Defendant brought a dump truck for installment sale, the lower court: (a) sent a written notification to Nonindicted Co. 1, stating that “The Defendant would make a claim for temporary repayment of rent in accordance with the terms and conditions of the Framework Agreement on Credit Transactions, and be in preparation for the provision of information on you’s property and in preparation for the provision of information on arrears; and (b) even if there was a written agreement between Nonindicted Co. 3 and Nonindicted Co. 1, that “In the event Nonindicted Co. 1’s obligation is not fulfilled, it may be managed by Nonindicted Co. 3, and appropriated for the repayment of the obligation by disposal or lease thereof,” the Defendant’s act of bringing a dump truck for installment constitutes a theft against the will of Nonindicted Co. 1, is justifiable in accordance with the foregoing legal doctrine.

C. Regarding ground of appeal No. 3

The allegation in the grounds of appeal in this part is with the purport that "the defendant's act of recovering a dump truck from an installment trade cannot be deemed to go against the will of the non-indicted 3 corporation, which is the owner, and thus does not constitute a theft." However, since the ownership of the dump truck from an installment trade is owned by the non-indicted 1 corporation, the above argument cannot be accepted ( even if the ownership of the dump truck from an installment trade was reserved to the non-indicted 3 corporation, the victim of larceny includes not only the owner but also the possessor, so there is no change in the conclusion that the defendant's act of collecting a dump truck without the consent of the non-indicted

2. Judgment on the grounds of appeal by the prosecutor

Since the crime of obstruction of one’s exercise of rights under Article 323 of the Criminal Act is established by interfering with another’s exercise of rights by taking, concealing, or destroying one’s own property which is the object of another’s possession or right, if the act of obstruction of one’s exercise of rights is not one’s own property (see Supreme Court Decision 2000Do5767 delivered on May 30, 2003).

The court below is just in holding that even if the defendant driven a dump truck on the ground that it was only the ownership of the non-indicted 3 corporation and did not own the defendant, the above act does not constitute a crime of interference with the exercise of rights, and there is no error in the misapprehension of legal principles as to the interpretation and application of the requirement of interference with the exercise of rights as alleged in the ground of appeal.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)