[2] The meaning of "aggravated confinement" under the Criminal Act / In a case where a thief has a relationship of relationship with the owner or possessor of a damaged article only one of the owner or possessor, whether the provision on the degree of kinship is applicable (negative)

In cases where a person, other than the registered title holder, has agreed to hold ownership of a motor vehicle, and even if a person, other than the registered title holder, holds ownership in the internal relationship between the parties to the agreement, the registered title holder shall be the owner of the motor vehicle (see, e.g., Supreme Court Decisions 2006Do4498, Jan. 11, 2007; 2010Do1771, Apr. 26, 2012). Meanwhile, under the Criminal Act, the ownership of a person, other than the owner of another person, in the possession of the motor vehicle, shall be excluded from possession against the possessor’s will, and shall be transferred to him/herself or to a third party’s possession (see, e.g., Supreme Court Decision 2009Do5064, Feb. 25, 2010); Article 328(1) of the Criminal Act regarding a crime between relatives and one owner of the damaged property and one owner of the stolen property shall be deemed not applicable only when there is a relationship between the owner and one owner of the 1.

Comprehensively taking account of the evidence duly admitted by the first instance court maintained by the lower court, the Defendant and the Defendant’s wife Nonindicted 1 agreed to own the instant vehicle (hereinafter “instant vehicle”) registered in the name of his woman. Nonindicted 1 sold the instant vehicle to the victim through Nonindicted 2, a motor vehicle dealer, through Nonindicted 2, who was a motor vehicle dealer, and the victim was transferred the instant vehicle to Nonindicted 2 in advance, and parked on the street in the area of the Busan Suwon-dongdongdongdong-gu, Busan. The Defendant discovered and arbitrarily driven the instant vehicle parked by the victim.

Examining these facts in light of the legal principles as seen earlier, in relation to the victim who is a third party, Nonindicted Party 1, the registered titleholder of the instant vehicle, is its owner, and as long as the Defendant arbitrarily brought about the instant vehicle that was purchased and possessed by the victim, the crime of larceny is established. The Defendant merely has a relationship of kinship with Nonindicted Party 1, the owner of the instant vehicle, and there is no relationship of relationship with the victim, which is the possessor, and thus, the Defendant does not apply to the crime of larceny by the Defendant.

Therefore, it is just to maintain the judgment of the court of first instance which found the Defendant guilty of the facts charged of this case. Contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles regarding crimes between relatives, or of misapprehending the rules of logic and experience and violating the principle of free evaluation of evidence.

Although the Defendant alleged that the police conducted an illegal and biased investigation by forcing the Defendant to return the instant vehicle to the Defendant, such as compelling the Defendant to return the instant vehicle, such circumstance is not recognized even after examining the record. This part of the grounds of appeal cannot be accepted.

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

Justices Jo Hee-de (Presiding Justice)