[2] Whether an act of applying for the order of lease registration by submitting a false lease contract to the court without a genuine lessee constitutes the commencement of a lawsuit fraud (affirmative)

1. Of the facts charged in this case against the defendant, the defendant prepared a false real estate lease agreement with the above non-indicted 1 and the victim non-indicted 2 in order to conduct business registration while operating the real estate brokerage business. Although the defendant and the non-indicted 3 corporation did not lease the first floor building (hereinafter "the building in this case") located in Daegu Dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong in a deposit amount of KRW 3 million, the Daegu District Court around January 31, 2007 submitted the "real estate lease agreement" with the above non-indicted 1 and the victim non-indicted 2 as if the defendant and the above company were a genuine tenant, and the non-indicted 3 representative of the non-indicted 3 corporation leased the building in this case to the non-indicted 200,000 won and the right to lease the commercial building in this case was received from the above non-indicted 300,000 won."

According to the reasoning of the judgment below, the court below found the defendant as follows: (a) on January 15, 2006, the non-indicted 1 and the non-indicted 2 were prepared by the non-indicted 1 and the victim non-indicted 2 as the lessor in order to operate the real estate brokerage business, and (b) the defendant did not actually lease the building of this case from the non-indicted 1 and the victim non-indicted 2; and (c) since the above real estate lease contract is a false contract, even if the defendant completed the lease registration based on the right of lease, it does not acquire the right under the lease contract or acquire the right of preferential payment or other legal effect as stipulated in the Commercial Building Lease Protection Act, so it cannot be deemed that the defendant acquired the right under the lease contract, and (b) insofar as the contract is null and void as the contract pursuant to a false declaration of intention agreed upon by the above real estate lease contract, it cannot be deemed that the defendant was an act of disposal by the victim non-indicted 2 in the receipt of the above order of lease registration; and (c) as long as the defendant did not express the claim.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. The acquisition of pecuniary benefits as referred to in Article 347 of the Criminal Act is sufficient if the acquisition of pecuniary benefits is not required to be legally effective, and even if the acquisition of such benefits becomes null and void by law (see Supreme Court Decision 75Do760, May 27, 1975, etc.). If the registration order of lease pursuant to Article 6 of the Commercial Building Lease Protection Act becomes effective after being notified to a lessor, the junior administrative officer, etc. shall, without delay, entrust the registrar with the entry of the registration of lease (Article 5 of the Rules on the Procedure for the Registration Order of Lease) and Article 6(5) of the Commercial Building Lease Protection Act, if the registration of lease by the execution of the registration of the above order of lease is completed, the lessee shall acquire the opposing power as referred to in Article 3(1) and the preferential repayment right as referred to in Article 5(2) by the time the lessee has already acquired the right of lease or the right of lease, and even if the right of lease is not lost due to an application for the registration of lease or the right of lease.

In addition, in a lawsuit fraud, the judgment of the court, which is the defrauded, should have the content and effect in lieu of the dispositive act of the victim, and in other cases, there is no act of delivering property by mistake, and therefore, fraud is not established (see Supreme Court Decision 2000Do1881, Jan. 11, 2002, etc.). Considering the procedure of the order of lease registration and the legal effect of the right of lease registration by its execution, barring any other special circumstances, the order of lease registration of the court shall be deemed as having the content and effect in lieu of the dispositive act of the Respondent as an act that may affect the Respondent's property status or status, and therefore, in the case of a lawsuit fraud using such order of lease registration of the court, whether the Respondent, who is the victim, directly dispositive act by means of

As above, inasmuch as it is deemed that the court's order of lease registration has the content and effect as a substitute for the victim's act of disposal of property, and it is deemed that the applicant acquired property benefits by completing the lease registration by the execution, the applicant shall be deemed to have commenced the act of fraud by submitting a false lease contract to the court without the genuine lessee, and furthermore, the application for the order of lease registration shall be deemed to have been commenced by the litigation fraud. Furthermore, even if the applicant actually expresses his intention to

B. According to the facts acknowledged by the court below, the defendant only prepared the above real estate lease contract for business registration, and actually did not rent the building of this case at the deposit of KRW 3 million from Nonindicted 1 and the victim Nonindicted 2. Thus, if the defendant submitted the above false real estate lease contract to the court and received the order of lease registration from the court as stated in the above facts charged, it cannot be readily concluded that there was no commencement of execution of fraud, acquisition of property profits, or there was no disposal act by the victim in light of the above legal principles.

Nevertheless, the court below rendered not guilty of this part of the facts charged only for the reasons indicated in its holding. The court below erred by misapprehending the legal principles on litigation fraud or the order of lease registration, which led to failure to exhaust all necessary deliberations, which affected the conclusion of the judgment

Therefore, this part of the judgment of the court below cannot be maintained, and this part of the facts charged and each of the remaining crimes which the court below found guilty are concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, the judgment of the court below should be reversed in its entirety.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Justices on the bench.

Justices Min Il-young (Presiding Justice)