The number of days under detention prior to the rendering of this judgment shall be included in the above sentence.

The defendant is the representative director of the non-indicted 1 corporation. On February 14, 200, the non-indicted 2 and the non-indicted 3 corporation reported confusion (the confirmation of confusion on January 5, 200), and the defendant as a security for consolation money of KRW 200 million, made the building located in Seocheon-gu Seoul (the owner's mother is non-indicted 3) as the object of the lease, and the defendant prepared the lease contract under the name of the lessee non-indicted 2 and made the lease contract under the name of the non-indicted 2 to the non-indicted 2, although the defendant did not conclude the lease contract with the non-indicted 2 or received the lease deposit, the defendant did not prepare the lease contract with the non-indicted 39,75,678 won for the above non-indicted 1 corporation at his discretion, and submitted the auction procedure to the non-indicted 2 corporation to the non-indicted 3 corporation at his own discretion to obtain the lease deposit amount of KRW 139,75,678 won.

Summary of Evidence

1. Entry of the accused in part of the first trial records, and the accused's partial statement in court;

1. Part of the witness’s legal statement and the witness E’s legal statement

1. Some of the suspect interrogation records prepared by the prosecutor on the accused;

1. The statement of December 22, 2000 prepared by the Prosecutor in charge of Duties of Judicial Police Officers against Non-Indicted 2 and the statement corresponding thereto in the suspect interrogation protocol dated December 23, 2000.

1. Statement prepared by the Prosecutor General in Charge of Duties of Judicial Police Officers in the E, which corresponds thereto;

1. A certified copy of the register, a report on rights and a request for distribution, and each description of a copy of real estate lease contract;

1. Each investigation report prepared by prosecution officials;

Application of Statutes

1. Article applicable to criminal facts;

Articles 315 and 30 (Selection of Imprisonment)

1. Calculation of the number of detention days before sentencing;

Article 57 of the Criminal Act

Judgment on the Defense Counsel's argument

1. A recommendation of innocence;

The defendant's defense counsel first, on August 11, 1999, which was the date of the preparation of the lease contract with the non-indicted 2, the defendant prepared the actual lease contract, and held the non-indicted 2 as a charge of divorce-related materials around September of the same year. Thus, the defendant and non-indicted 2 asserted that the crime of this case is not established since they are in a lease contract relationship.

On the following grounds, the date of preparation of the above lease contract is determined to be after the defendant was served with the decision on commencing the auction of this case, and the above argument is rejected as it is without merit.

First, there is no fixed date at the time of preparation of the lease contract. Since the actual owner of the building in the judgment (hereinafter “instant house”) is the husband and the nominal owner is the mother, no measure was taken against the third party even though it is anticipated that the lease relationship will be doubtful. Ultimately, it is determined that the Defendant was unable to obtain the fixed date because the Defendant prepared the instant lease contract after receiving the decision on commencement of auction.

Second, although the Defendant prepared a lease contract in order to guarantee consolation money to Nonindicted 2, who is the wife at the time, it would be the way to protect Nonindicted 2 more in the name of Nonindicted 2. On June 22, 1999, Nonindicted F was awarded a successful bid on the instant house, and the Defendant purchased the instant house in the name of Nonindicted 3 on August 11, 1999 from the above F. At that time, if the Defendant wanted to give consolation money of KRW 150 million to Nonindicted 2, the name of the owner of the instant house would be to purchase the instant house from Nonindicted 3 to Nonindicted 2, not Nonindicted 3, and to set the right to collateral security in another way.

Third, according to the statement of E, at the time of replacing the existing collateral (1091m2, maximum debt amount of KRW 500 million in Seoul Northern-gu G), the Defendant said that he was living in the above house as the actual owner of the above house, and that he did not speak that he was in a lease contract relationship with Nonindicted 2, who was the Defendant’s wife at the time.

Fourth, according to the first statement made by Nonindicted 2 at the investigative agency, it is evident that Nonindicted 2 conspired with the Defendant to make a false lease contract after the commencement of the auction on the instant house. In other words, according to the Nonindicted 2’s statement, documents served on February 14, 200, which began auction from the court around May 200, and continuously served on documents related to auction, and consultation with the Defendant, the Defendant prepared a lease contract as if Nonindicted 2 resides in the said house as a tenant, and made it possible for the Defendant to receive money equivalent to 150,00 won to receive dividends on the basis of it (the lease contract was made at KRW 30,00,000,000 which was 20,000 won, 30,000 won, which was trusted by Nonindicted 2, 30,000,0000 won, and 23,000,0000,000 won, which was first 2,000,000.

2. An assertion seeking a disposition with regard to it;

Next, even if the defendant's defense counsel is found guilty, since the non-indicted 2 withdraws the demand for distribution of lease deposit in the auction court, the defendant's defense counsel has sought a fine, etc. against the defendant.

However, the amount of security claimed by Nonindicted 2 is not a small-sum deposit under the Housing Lease Protection Act, but a fixed date has not been paid at the original rate from the distribution procedure in the auction court. However, only when the person who acquired the opposing power of the housing lease claims the continuation of the lease to the successful bidder of the housing and is in the position to receive the security deposit from the successful bidder at the time of termination of the lease by asserting the existence of the lease against the successful bidder. In other words, in this case, Nonindicted 2 does not interfere with the auction by receiving the security deposit in the distribution procedure by the court of auction, but rather, in this case, the fair auction is hindered by reducing the bid price equivalent to the security deposit by presenting it to the successful bidder by having the appearance of the housing lessee who has opposing power and presenting the fact to the successful bidder through the report on the right and the application for demand for distribution. Accordingly, even if Nonindicted 2 withdraws the demand for distribution by waiver of dividends that cannot be received from the original date, any change

Rather, inasmuch as Non-Indicted 2 asserts that there is no lease relationship, as shown in its reasoning, the lessee still has the opposing power as shown in the instant trial process, it is possible to take over the obligation to return the deposit after the successful bid and participate in the bid, so the said house is bound to be successful in the bid with the reduction of the amount of the security deposit, and thus, it would result in impeding fair auction. Accordingly, the aforementioned assertion by the defense counsel is rejected.

Judges Jeong Young-young