[절도][공1991.6.15,(898),1565]
(a) The case holding that when the defendant and Gap completed the construction work of cutting down standing timber in forest land between the defendant and Gap, the defendant's act of selling it to others without delivering it to Gap does not constitute larceny since a contract was concluded to deliver the raw timber cut to Gap, and Gap fulfilled his contractual obligation;
B. Whether a claim that does not involve possession of another person's right among the elements of the crime of obstruction of one's exercise of one's right includes a claim (affirmative)
A. The case holding that, when the defendant and Gap completed the construction work of cutting down standing timber in forest land, the defendant's act of selling it to others is merely an act of disposal of one's own property and thus does not constitute larceny even if Gap's act of selling it to others without delivering it to Gap, since the above original part's ownership does not directly belong to Gap, and even if the above original part's ownership does not belong to Gap, and the above original part's ownership is not directly belonging to Gap, but it takes effect by delivering it to Gap separately, since the defendant, the owner of the above original part's ownership, expressed his intention to transfer ownership on the above original part, and delivered it to Gap.
B. Among the elements of obstruction of another person’s right, “the right of another person” does not necessarily mean limited real rights, but includes bonds which do not involve possession of the object.
A. Article 329 of the Criminal Act, Article 188 of the Civil Act, Article 323 of the Civil Act
B. Supreme Court Decision 4292Do537 delivered on September 14, 1960, Supreme Court Decision 68Do616 delivered on June 18, 1968 (Concurrent 16(2)27)
Defendant
Prosecutor
Chuncheon District Court Decision 90No113 delivered on April 19, 1990
The judgment of the court below shall be reversed and the case shall be remanded to Chuncheon District Court Panel Division.
As to the Grounds of Appeal
1. As to larceny, which is the primary charge of this case, the court below's conclusion that the contract was concluded between the victim and the defendant that "if the victim completes construction of cutting down standing timber, etc. of the forest of this case, the defendant delivers the forest of this case to the victim," and even if the victim fulfilled all the obligations under the above contract, the ownership of the forest of this case does not directly belong to the victim, but the ownership of the forest of this case becomes effective only when the defendant, the owner, expresses his intention to transfer ownership of the forest of this case to the victim and delivers it to the victim, and there is no evidence suggesting that the transfer of ownership takes effect. Accordingly, the defendant's sale of the forest of this case to another person is merely the disposal of the forest of this case's own property and does not constitute larceny. Thus, it cannot be said that there is no error in the misapprehension of legal principles or in the misapprehension of the rules of evidence, such as the theory of lawsuit, etc.
2. As to the obstruction of another’s exercise of right, which is the ancillary charge of this case, the court below held that even if the above contract was concluded between the victim and the defendant, and the victim fulfilled all the obligations under the above contract, this cannot be deemed as a claim arising with respect to the original part of this case, and that the victim cannot be deemed as having a lien or other similar security right as to the original part of this case, and that the crime of obstruction of another’s right under the premise that the victim has such right does not constitute a crime of obstruction of one’s exercise of one’s right. However, the "the other party’s right" among the elements of obstruction of one’s exercise of one’s right does not necessarily mean a limited real right, but it includes a claim that does not involve possession of the goods (see, e.g., Supreme Court Decisions 68Do616, Jun. 18, 1968; 4292537, Sept. 14, 1960).
Therefore, the part concerning the conjunctive charges in the original judgment cannot be reversed, and the part concerning the primary charges in relation to the same body cannot be reversed.
3. The lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating judges.
Justices Park Jong-dong (Presiding Justice)