except that the execution of each of the above penalties shall be suspended for two years from the date this judgment becomes final and conclusive.

Of the facts charged in the instant case against the Defendants, the part as indicated in [Attachment 2, 3, 5, 41] Nos. 2, 3, 5, 4

On December 13, 2013, Defendant 1 was sentenced to 2 years of imprisonment with prison labor for obstructing the exercise of rights by the Seoul Central District Court, and the said judgment became final and conclusive on the 21st day of the same month.

On October 27, 2011, Defendant 2 was sentenced to the suspended sentence for 8 months in the Chuncheon District Court for the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, and the said judgment became final and conclusive on November 4 of the same year.

【Criminal Facts】

The Defendants: (a) are subject to the cancellation of registration when the registration of a car rental business entity of the pertinent company is revoked; (b) are interested persons who did not secure possession of a vehicle among them are unable to exercise their rights such as exercise of mortgage and thus lose their rights due to ex officio revocation; (c) are incorporated, around March 2, 2011, Nonindicted Co. 2 (Representative 1) companies (hereinafter “instant company”); (d) register a vehicle with mortgage-backed as a car of the said company with a vehicle for business use of the said company, the said vehicle is distributed in large lanes; and (e) the said vehicle is distributed in large lanes; and (e) the mortgage, etc. is extinguished by ex officio revocation upon the revocation of registration of the car rental business entity; and (e) Defendant 2, as representative director, share the duties related to the authorization and permission of a corporation and authorization of a car rental business entity; and (e) Nonindicted Co. 1 and Nonindicted Co. 3, and Nonindicted Co. 4 (Death on January 27, 2013).

Accordingly, the Defendants, in collusion with Nonindicted 3 and Nonindicted 4 on April 7, 201, registered (vehicle registration number 7 omitted) car in the name of the victim Nonindicted 1 Co., Ltd. as the ownership (vehicle registration number 8 omitted) of the instant company (vehicle registration number 8 omitted) and around that time, transferred it to Nonindicted 8 and distribute it on a large lane (attached Table 1) and around April 21, 201, on which a mortgage of KRW 34 million is established (vehicle registration number 9 omitted) in the name of the victim was registered as the ownership (vehicle registration number 2 omitted) of the instant company, and thereafter thereafter, the Defendants obstructed the victim’s exercise of rights by concealing their own goods that were the object of the victim’s mortgage (number 4 omitted).

1. Each statement made by Nonindicted 8 and Nonindicted 11 in the third trial record among the witness’s trial records of Nonindicted 9 and the sixth trial records

1. Each prosecutor's suspect interrogation protocol against the Defendants

1. A certified transcript of corporate register or a ledger of automobile registration;

Articles 323 and 30 (Obstruction of Exercise of Rights and Selection of Imprisonment)

In a case where the representative director of a corporation, based on the status of the representative director, conceals articles which have become the object of another person's right as an act of performing his duties, such act is deemed to be an act of the company's representative director, and thus, the company's articles should also be deemed to be "self-owned articles" in the obstruction of exercising the right (see Supreme Court Decisions 91Do1170, Jan. 21, 1992; 2008Do10234, Feb. 12, 2009, etc.).

As to the part in the annexed list Nos. 4, the above evidences revealed that the Defendants conspired to register the name of the pertinent vehicle with the instant company around April 201, and transferred the right to use and dispose of the said vehicle to Nonindicted 9, a third party, who is not the previous owner of the said vehicle, and used it in possession by Nonindicted 9, and that the Defendants cancelled the registration of the said vehicle as indicated in the above criminal facts and ordered Nonindicted 9 to transfer the ownership of the said vehicle to Nonindicted 9 by way of having Nonindicted 9 make a new registration registered. In light of these facts, the Defendants’ above act can be deemed to have been concealed, namely, that it was impossible or difficult for the mortgagee to detect the said vehicle.

In addition, according to the above macroscopic evidence as to the part Nos. 1 in the above table, the defendants conspired to register the name of the pertinent vehicle with the instant company around April 201, and transferred the right to use and dispose of the said vehicle to Nonindicted 8, a third person, who is not the previous owner of the said vehicle in that situation, and used it in possession by Nonindicted 8. As the defendants conspired, the registration of the said vehicle was cancelled ex officio, as the defendants conspiredd, and the registration of the said vehicle was cancelled ex officio, and Nonindicted 8 was newly registered upon the solicitation of the Defendants, and disposed of it in other ways. In light of these facts, the defendants' act of transferring the said vehicle to Nonindicted 8 can be deemed as having caused the mortgagee to discover or make it impossible or difficult for him to detect the said vehicle. In other words,

1. Handling concurrent crimes;

The latter part of Article 37 and the first sentence of Article 39(1) of the Criminal Act

1. Aggravation of concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Code

1. Suspension of execution;

Article 62(1) of the Criminal Code (The following circumstances considered as favorable among the reasons for sentencing)

The Defendants abused the fact that the registration of the car rental business entity of YA is revoked, and the interested parties who did not secure the possession of the vehicle among them are unable to exercise their rights such as exercise of mortgage and thus lose their rights due to ex officio revocation. On March 2, 2011, the Defendants: (a) incorporated the instant company; (b) registered a vehicle with mortgage as a business vehicle of the said company; (c) distributed the vehicle on a large-lane basis; and (d) distributed the said vehicle ex officio upon revocation of registration of the car rental business entity; and (b) subsequently, Defendant 2 shared the duties related to the authorization of the establishment and rent rental business entity as the representative director; and (c) Defendant 1 and Nonindicted 3, and Nonindicted 4 (Death of January 27, 2013) shared the roles of purchasing vehicles to be registered as the vehicle owned by the said company, respectively.

Accordingly, in collusion with Nonindicted 3 and Nonindicted 4 on April 14, 201, the Defendants registered (vehicle registration number 10 omitted) passenger cars with the claim value of KRW 25 million under the name of Nonindicted 1 Co., Ltd. as the ownership of the instant company (vehicle registration number 11 omitted), and obstructed the victims’ exercise of rights by concealing their own goods, which were the purpose of the mortgage (excluding No. 1,042,785,000 won in total) of the victims 39 times in total, as indicated in the separate crime list (excluding No. 1, 4). < Amended by Presidential Decree No. 23293, Jul. 27, 2011; Presidential Decree No. 22014, Jul. 27, 2011; Presidential Decree No. 20220, Apr. 1, 2011>

2. The gist of the Defendants’ lawsuit

A. Defendant 1

The Defendant did not play a role as indicated in the facts charged, nor did the Defendant either participate in the instant siren registration business or engaged in siren registration business. In addition, the instant siren rental business is merely cancelled at the discretion of an administrative agency based on the relevant laws and regulations, and the vehicles registered as sirens are used by the actual owners by the so-called entry method. Accordingly, the Defendant did not conceal each of the instant vehicles.

B. Defendant 2

The Defendant did not share the same role as indicated in the facts charged, but only requested that the Defendant establish the instant company and register it as a siren with the neighbors. Also, the instant siren lending business was cancelled at the discretion of an administrative agency pursuant to the law and regulations and allowed the actual owners to use a vehicle registered as a siren by so-called entering. Accordingly, the Defendant did not conceal each of the instant vehicles.

3. Determination

A. Relevant legal principles

Where a license, etc. is invalidated or revoked pursuant to the Passenger Transport Service Act, the owner of the motor vehicle shall file an application for the cancellation of the motor vehicle with the Mayor/Do Governor within one month from the date such cause occurs. In such cases, if any interested party exists with respect to the cancellation, his/her written consent or a certified copy of the judgment against him/her shall be attached to the application [Article 31(1) of the former Motor Vehicle Management Act (amended by Act No. 10721, May 24, 201; hereinafter the same

Where the owner of a motor vehicle fails to file an application for the registration of cancellation, the Mayor/Do Governor may make the registration of cancellation ex officio: Provided, That unless the owner of the motor vehicle and interested persons have agreed to the registration of cancellation, he/she shall notify the owner of the motor vehicle and interested parties entered in the register by not later than one month before such notification (Article 13(4) of the former Motor Vehicle Management Act and Article 6 of the former Act on Mortgage on Specific Movables including Motor Vehicles (amended by Act No. 13287, May 18, 2015; hereinafter the same shall apply)

In the event of cancellation by official authority, unlike the cancellation by a vehicle owner's application, it is not required to attach a written consent of the interested parties or a certified copy of the judgment that can oppose it.

A mortgagee of a motor vehicle who has received prior notice ex officio of the registration of a motor vehicle may immediately exercise his/her right on the relevant motor vehicle. In such cases, the mortgagee shall commence the procedure for exercising the mortgage within one month from the date he/she has received the said notice, and the Mayor/Do Governor shall not, if the mortgagee starts the procedure for exercising the mortgage within the said period, cancel the registration of cancellation until the procedure for exercising the mortgage is completed (Article 7 (1) through (3) of the former Act on Mortgage on Specific Movables, such as Motor Vehicles): Provided, That even if an auction procedure for exercising the security right to a motor vehicle is commenced, if the execution officer fails to deliver the motor vehicle within two months from the date on which the decision on commencing the auction is made, the auction procedure shall be cancelled (Articles 197

Where a person intends to register a motor vehicle whose registration has been cancelled again, he/she shall apply for new registration as prescribed by Presidential Decree (Article 13 (10) of the former Automobile Management Act).

If the owner of a motor vehicle intentionally conceals the motor vehicle and the mortgagee fails to grasp the location of the motor vehicle, even if the mortgagee exercises the mortgage, the decision to commence the auction may be revoked and the registration of the motor vehicle may be revoked along with the registration of the mortgage. However, the concealment of the motor vehicle is caused by the high level of mobility and the easiness of concealment, which is the characteristics of the motor vehicle, and may be accompanied by the establishment of a mortgage on the motor vehicle. The difficulty in detecting the location of the motor vehicle can be predicted to a certain extent when a mortgage, which is a security right that does not require possession of the motor vehicle, is established. Therefore, if a mortgage on the motor vehicle was established, the

In addition, even if the registration of an automobile mortgage is cancelled ex officio without the repayment of the secured claim of the mortgage, the validity of the mortgage does not themselves become extinct. Since the effect of the mortgage even after the registration of the mortgage is cancelled is limited to the body of the automobile which is the real subrogation of the mortgage, the mortgagee’s preferential right to payment still remains in the body of the automobile. Therefore, the mortgagee still holds the right to obtain preferential payment by taking procedures for seizure of the movable property after securing possession of the relevant automobile and filing an application for auction (see, e.g., Supreme Court Decision 943-28, supra).

Meanwhile, the crime of obstructing another person’s exercise of right under Article 323 of the Criminal Code is established where “a person interferes with another person’s exercise of right by taking, concealing, or destroying his own goods or special media records such as electronic records which are the object of another person’s possession or right.” In light of the provisions of Article 323 of the former Automobile Management Act and Article 32 of the former Act on Mortgage on Specific Movables, including the former Automobile Management Act, the owner of a motor vehicle, who acquired a mortgage by abusing the registration of cancellation ex officio, intentionally meets the requirements for ex officio revocation of the registration of cancellation, and then, if the owner of a motor vehicle disposes of another motor vehicle with new registration after having ex officio cancelled the registration of cancellation, the owner of the motor vehicle shall be deemed to have interfered with the exercise of the mortgagee’s right by concealing the motor vehicle which is the object of

B. Determination as to the parts as indicated in the annex Nos. 2, 3, 5 through 36, 38 through 41

According to the evidence duly adopted and investigated by this court, the fact that each of the above vehicles was registered as the ownership of the company in this case, and the registration was cancelled ex officio as to some of the vehicles as stated in this part of the facts charged, and the fact that the vehicle could not exercise the mortgage because the location of the vehicle was not verified.

However, in this case where there is no specific evidence to know the relation to the possession or use of each of the above vehicles, whether and how new vehicles are registered after ex officio cancellation, the nominal owner and its ownership change, the Defendants’ specific degree of involvement, etc. at the time of the new registration, etc., it cannot be readily concluded that each of the above vehicles was concealed solely on the ground that the registration of mortgage was cancelled.

C. Determination as to the section No. 37 of the same Table

There is no evidence to deem that the Defendants distributed automobiles listed in No. 37 of the same table as indicated in this part of the facts charged.

However, according to Defendant 1’s statement at the prosecutor’s office, following the registration of the above automobile owned by the company of this case, Defendant 1 occupied and used it, and the above vehicle was delivered to a third party as collateral on July 201, and Defendant 1 thereafter made a new registration after ex officio cancellation and disposed of it to another party. Although there is no room to regard this act as a crime of obstructing the exercise of rights, it is a fact different from the facts charged as stated in the indictment, it cannot be said that it is subject to adjudication without any changes in the indictment.

D. Sub-committee

Therefore, this part of the facts charged against the Defendants constitutes a case where there is no proof of crime and thus, they are acquitted under the latter part of Article 325 of the Criminal Procedure Act.

It is so decided as per Disposition for the above reasons.

[Attachment]

Judges B. For judges

(1) On September 22, 2011, Nonindicted Party 10 resigned, and Nonindicted Party 10 was the same representative director.