2012Do14362 Fraudulent

A person shall be appointed.

Defendant

Law Firm B, Attorney C

Daegu District Court Decision 2012No1881 Decided November 1, 2012

May 23, 2013

The judgment of the court below is reversed, and the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined.

1. The summary of the facts charged in this case is as follows.

On August 1, 2011, the Defendant leased and operated the telecom with E, which was the owner of the Gumitodi (hereinafter referred to as “the telecom”). The telecom sold the telecom to the victim F, etc. on August 1, 2011. The Defendant: (a) on the part of the victim F, seeking to deliver the telecom, on August 1, 2011, issued a false provisional seizure of the corporeal movables (hereinafter referred to as “the corporeal movables of this case”) from 00,000 won to 15,000 won; (b) on the part of the owner of the telecom; (c) on the part of the owner of the telecom; and (d) on the part of 15,000 won to 10,000 won to 10,000 won to 30,000 won to 10,000 won to 10,000 won to 10,000 won to 20,00 won to 1.

However, when the Defendant had the instant corporeal movables seized upon the execution delegation by other creditors, it was thought that the Defendant received money from the victim without notifying the victim, and then did not have the intent or ability to deliver the instant corporeal movables to the victim without legal problems.

As such, the Defendant, by deceiving the victim, received from the victim the transfer of KRW 15 million from August 12, 201 to August 15, 201, for the delivery of the instant corporeal movables, and acquired it by deception.

2. Comprehensively taking account of the facts and circumstances acknowledged by the evidence adopted by the lower court, the victim entered into an agreement on August 1, 201 with the victim who actually occupied the apartment at the time to operate the knocked apartment, and on August 12, 201, to deliver all of the movable properties within the apartment including the instant corporeal movables as they are. After the agreement was concluded on August 1, 201, G, a third party after executing seizure of the instant corporeal movables, thereby newly involved in legal issues with G, which were the third party by executing seizure of the instant corporeal movables. If the victim became aware of such circumstances with the Defendant, the lower court did not make a new agreement with the Defendant on August 12, 201, and the Defendant did not make a new agreement with the victim on August 12, 201, which was more complicated than that of the victim’s new corporeal movables, and thus, found the victim to have been subject to seizure 100,000 won prior to the conclusion of the agreement.

3. However, the judgment of the court below is not acceptable for the following reasons.

In accordance with the facts charged in this case, the contents of deception against the victim of this case can be deemed to be that when the defendant had had another creditor execute the seizure of the corporeal movables provisionally seized by him, it did not speak such fact to the victim, and that the corporeal movables in the telecom belongs to the intent or ability to deliver the corporeal movables to the victim without legal problems.

However, according to the records, the defendant occupied and used the telecom with the tenant who was the owner of the telecom leased from E, and the defendant did not receive KRW 15 million from E, and the defendant issued a provisional seizure on the instant corporeal movables owned within the telecom, around July 6, 2011, and the defendant cooperates with the victim at voluntary auction to change the name of the business operator, etc., and left the telecom, including the instant corporeal movables, with the victim at KRW 50,00,000,000 from August 1, 201 to KRW 10,000,000,000 to KRW 1.5,000,000,000,000,000 to KRW 1.5,000,000,000,000,000,000,000,0000,000,000,000,000).

According to the above facts, the defendant is the person holding a provisional seizure for the corporeal movables of this case, and is not the owner of the corporeal movables of this case, and is not in a position to deliver the corporeal movables of this case which are provisionally seized by him to the victim without any legal problems, and thus the defendant does not exercise his right as the person holding a provisional seizure but deliver the corporeal movables of this case.

1. An agreement was concluded, and the victim also entered into the said agreement with the knowledge of such circumstances, and on August 2011.

1. According to the self-agreement, even if the Defendant’s execution of the instant corporeal movables seized by the Defendant after the agreement, does not have the duty to prevent a third party from executing the said corporeal movables, or even if they enter the compulsory execution, it may be deemed that the Defendant: (a) transferred a movable property within the her mother and her mother to a third party so that the said corporeal movables may run the business; (b) instead of taking a provisional attachment against the movable property within the her mother, and (c) received a comprehensive of KRW 30 million in return for cooperation with the procedures necessary for business; and (d) even if G executed a seizure of the instant corporeal movables seized by the Defendant around August 10, 201, the victim had the execution of the seizure of the said corporeal movables by the Defendant around August 1, 2011.

31. We find out the following circumstances: (a) the Defendant still assumes the duty to pay up to August 12, 201; and (b) the Defendant would deliver all corporeal movables, including the instant corporeal movables, to the victim upon contact with the victim and payment of KRW 30 million; and (c) the victim would have been able to conduct business from August 15, 201; and (d) the victim’s response can be deemed to have fulfilled the mutual duty under his/her agreement as of August 1, 201.

In light of the above circumstances, when the defendant had another creditor execute the seizure of the corporeal movables of this case that he had seized, it is insufficient to view such a fact not knowing to the victim by omission, or that the defendant had the intent or ability to deliver the corporeal movables within the telecom to the victim without any legal problems. Furthermore, the payment of KRW 30 million to the defendant by the victim is merely a performance of the obligation under the agreement between the defendant and the defendant, and cannot be deemed as a fraudulent act by the defendant.

Ultimately, the court below found the Defendant guilty of the facts charged in this case due to the lack of recognition of the Defendant’s deception. The court below erred by misapprehending the legal principles on deception, etc. which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. Therefore, 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 Park Poe-dae

Justices Yang Chang-soo

Justices Go Young-young

Jeju High Court Justice Kim Chang-suk