Defendant 1 and one other

Kim Jong-mun

Attorney Lee Jung-soo et al.

Defendant 1 (Defendant 1 in the judgment of the Supreme Court) is punished by imprisonment with prison labor for a year and six months, and Defendant 2 (Defendant 2 in the judgment of the Supreme Court) for a year.

However, with respect to Defendant 2, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

Defendant 1 (Defendant 1 of the Supreme Court’s judgment) is a person who was working as the office of the attorney-at-law, and Defendant 2 is a child of Nonindicted 5. Nonindicted 5 is a shot of Nonindicted 7, a South-born of Nonindicted 3, and Nonindicted 3 is a wife of Nonindicted 2.

Defendant 1, on September 31, 1959, upon filing an application for disclosure of information with respect to the National Archives, confirmed the fact that the registration of preservation of ownership was completed in the name of the State on the ground that the ownership was completed in the name of the State on December 31, 1959, on the ground that the ownership was not restored by the owner on December 31, 1959, with respect to the height of 1,101 square meters (number 1 omitted), 2,417 square meters prior to the same Ri (number 2 omitted), 2,417 square meters prior to the same Ri (number 3 omitted), and 2,866 square meters (hereinafter referred to as the “instant real estate”).

Defendant 1 was found to be the house of Defendant 2, who was located in the Dong-si, Yi-si around August 2008, and the Defendants informed Defendant 2 and Nonindicted 5 of the instant real estate. In light of the fact that Nonindicted 5 and Nonindicted 2 died on August 15, 1953, Nonindicted 3 died during the Korean War, and Nonindicted 2’s wife Nonindicted 3 died during the Korean War, and Nonindicted 4 was missing from North Korea during the Korean War, Nonindicted 2 and Nonindicted 4 died first of more than Nonindicted 3, and Nonindicted 3 filed a false death report as if he died after 1960, which was recognized by the enactment of the Civil Act, thereby soliciting Nonindicted 5 to acquire the ownership of the instant real estate through inheritance order.

1. Public electronic records, originals, false entry and public electromagnetic records; and

On April 27, 2009, the Defendants stated the false statement on Nonindicted 3’s death report by Nonindicted 3, through Nonindicted 8’s certified judicial scrivener, that “Nonindicted 3 died from a simple border at the office of Mancheon-si, Mancheon-si, Mancheon-si, Mancheon-si, Mancheon-si, 13:10 on May 21, 1962.” Nonindicted 4 stated the false statement on Nonindicted 4’s death report by stating that “Nonindicted 4 died from a heart at the office of Mancheon-si, Mancheon-si, Mancheon-si, Mancheon-si, Mancheon-si, Mancheon-si, Mancheon-si, Mancheon-si, Mancheon-si, Mancheon-si, Mancheon-si, 100,000 won, which Defendant 2 received in advance, and made it known that Nonindicted 3’s family relation registration was registered in the above system.

Accordingly, in collusion with Nonindicted 5, the Defendants made the Defendants enter false facts in the family relation registration computer system of Nonindicted 3 and 4, which is a public electronic record, and exercised by making them be operated.

2. Fraudulent and attempted fraud;

On August 13, 2009, based on the false report of death described in paragraph (1), the Defendants delegated the lawsuit to Nonindicted 6 Law Firm (Attorney in charge, Nonindicted 11), and filed a lawsuit against the State for the cancellation of registration of preservation of ownership in the name of the State on the ground that the instant real estate is Nonindicted 5’s inherited property.

On February 2, 2010, the above court rendered a ruling of recommending a compromise to the State and Nonindicted 5 to the effect that “the State shall cancel the registration of initial ownership, which was completed with respect to the remaining 2,165 square meters of land of the above Mari-ri (number 3 omitted) and the land of the above Mari-ri (number 2 omitted), except for the remaining 252 square meters of land used as a road site,” and that “the State and Nonindicted 5 did not raise an objection against the said ruling of recommending a compromise, and the said ruling of recommending a compromise became final and conclusive on February 20, 2010.

On August 13, 2010, Nonindicted Party 11’s legal office cancelled the registration of preservation of ownership, which was completed in the name of the State, on the land of the above ancient-ri (number 3 omitted) and 2,165 square meters (hereinafter “instant land”) out of the land of the instant real estate in the name of the State, and completed the registration of preservation of ownership in the name of Nonindicted Party 5, using the relevant documents, such as the decision to recommend reconciliation and the certificate of personal seal impression issued by Nonindicted Party 5 via Defendant 1.

As a result, in collusion with Nonindicted 5, the Defendants deceiving the above court as if Nonindicted 5 was the lawful inheritor of Nonindicted 2, and acquired the status of acquiring the ownership of the land of this case (the total market value of KRW 400 million) by receiving a decision of recommending reconciliation from the above court.

In addition, the Defendants attempted to acquire by the same method the status that he/she can obtain the ownership of 252 square meters (the officially announced land price shall be equivalent to 237,816,000 won) and 252 square meters (the publicly announced land price shall be equivalent to 32,256,000 won) out of the land of the same Ri (number 2 omitted), among the instant real estate in the same manner, on the ground that the said land is being used as a community hall or a site for a road, the Defendants were attempted to obtain a decision to recommend the above reconciliation that renounces the claim for cancellation of the registration of ownership preservation on each of the said land.

1. Defendants’ respective legal statements

1. Each legal statement of the witness, Nonindicted 12, 13, 8, and 5

1. Each prosecutor's interrogation protocol against the Defendants

1. Investigation reports (attached to the national records and replies of the national records);

1. Records of civil procedure (Seoul Central District Court Decision 2009Gahap92239, No. 209);

1. Article applicable to criminal facts;

○ Defendants: Articles 228(1), 30 (a), 229, 228(1), 30 (a), 30 (a) of each Criminal Act; (b) Articles 229, 228(1), and 30 (a) of each Criminal Act; (c) Articles 347(1), and 30 (including fraud at the time of the market) of the Criminal Act; Articles 352, 347(1), and 30 (a) of the Criminal Act encompassing the attempted fraud at the time of the market) of the Criminal Act

1. Commercial competition;

○ Defendants: Articles 40 and 50 of the Criminal Act (Punishments provided for in the Judgment that the nature of the crime is more severe between the crime of fraud and the attempted crime of fraud)

1. Selection of punishment;

○ Defendants: Determination of imprisonment with prison labor for each crime

1. Aggravation for concurrent crimes;

○ Defendants: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act. Article 50 (Aggravation of Concurrent Crimes with Punishment provided for in Judgment with the most serious Punishment)

1. Suspension of execution;

○ Defendant 2: Article 62(1) of the Criminal Act (see, e.g., circumstances favorable to the following reasons for sentencing)

1. Defendant 1

A. Whether the Defendant recognized that the report of death as stated in Paragraph 1 of the judgment was false

The following facts acknowledged by the evidence are as follows. Co-defendant 2, on January 2009, knew that Non-Indicted 3 died and that Non-Indicted 4 went in the Korean War, the highest order of Non-Indicted 9 during the Korean War, and around that time, he informed the Defendant of this fact. The Defendant also recognized that Non-Indicted 2 participated in the above fluence (Evidence No. 902 of the record) around January 2009 (Evidence No. 902 of the record), however, the Defendant informed Non-Indicted 2 that Non-Indicted 3, 4 and 4 could succeed to Non-Indicted 2’s property. Non-Indicted 8 prepared a death report with Non-Indicted 3 and 4, as indicated in the judgment of the Defendant, and Non-Indicted 8 made a statement that Non-Indicted 3 and 4's death was known at the time of the Defendant’s arbitrary reporting of death, and the Defendant could not be found to have been aware of the motive for Non-Indicted 3 and 4's death at his own discretion in light of the amount of money reported.

B. Whether the court's ruling of recommending compromise constitutes a disposal act

In a lawsuit fraud, the judgment of the court, which is the defrauded, must have the content and effect in lieu of the victim's dispositive act, and in other cases, there is no act of giving property by mistake, and therefore it does not constitute fraud (see Supreme Court Decision 2000Do1881, Jan. 11, 2002, etc.). Since the decision of recommending settlement by the court becomes final and conclusive, the above decision has the same effect as that of the final and conclusive judgment (Article 231, Article 220 of the Civil Procedure Act). Thus, the decision of recommending settlement, which became final and conclusive, shall be deemed to constitute a dispositive act as the judgment of the court with the content and effect

C. Whether property gains are acquired

Where a defendant or a person who has recruited with him/her files a lawsuit against the title holder of the registration of preservation while claiming that he/she is the owner of the land and seeking the cancellation of the registration of preservation, if such lawsuit becomes final and conclusive in favor of the defendant or the person who has conspiredd with him/her, by recognizing that the above land is the ownership of the defendant or the person who has conspired with him/her and ordering the cancellation of the registration of preservation, the above judgment can be applied for the registration of preservation of ownership by a judgment proving ownership under Article 130 subparagraph 2 of the Registration of Real Estate Act and completing the registration. Thus, this judgment can be concluded by applying for the registration of preservation of ownership in his/her future by deceiving the court and obtaining favorable judgment. In such case, the time when the above judgment becomes final and conclusive (see Supreme Court en banc Decision 2005Do9858, Apr. 7, 2006). This legal principle also applies to the decision of reconciliation recommendation that has the same effect as the final and conclusive judgment.

According to each of the above evidence, the Defendant, in collusion with Co-Defendant 2 and Nonindicted 5, filed a lawsuit seeking cancellation of preservation registration against the State, the nominal owner of ownership preservation registration of the instant real estate, in collusion with Nonindicted 5 as the heir of Nonindicted 2, and confirmed a final decision of recommending reconciliation with the content that the instant land is owned by Nonindicted 5. Thus, the Defendant can sufficiently be recognized that the Defendant removed interference with the ownership of the instant land and obtained the title of ownership.

2. Defendant 2

The following facts acknowledged by each of the above evidence are: (a) from February 2009, the Defendant was aware of the fact that Co-Defendant 2 was trying to acquire the real estate of this case by filing a false report on the death of Non-Indicted 3 and 2 and filing a lawsuit on the ground thereof; (b) the Defendant, as demanded by Defendant 1, delivered the documents, such as Non-Indicted 5’s seal, Non-Indicted 9’s letter of credit guarantee, to Non-Indicted 6’s non-Indicted 5, and delegated the lawsuit to Non-Indicted 6’s non-Indicted 6 legal entity; (c) thereby, there was a false date and time of death in the family relations register of Non-Indicted 3 and Non-Indicted 2; and (d) the above decision was confirmed as it was submitted as evidence; (d) the Defendant agreed from the beginning to receive 60% of the sales price of the real estate of this case with Defendant 1; and (e) the Defendant was fully aware of the payment of KRW 2160 million out of the remaining land price.

1. Defendant 1

In addition, the defendant has committed each crime with very intelligent methods, such as inducing co-defendant 2 and Non-Indicted 5 to file a false death report under a close advance plan and making a false death report, etc., with the main mitigated sentencing factor, such as that the profits acquired through the criminal act as stated in the judgment as the initial crime is merely KRW 40 million and that the damage has not been recovered, and the punishment shall be determined as ordered by the order, taking into account the following factors into account: (a) the defendant's age, character and conduct, living environment, etc.; (b) the whole criminal process has led not only the crime; (c) the amount of damage caused by the criminal act as stated in the judgment exceeds KRW 40 million; and (d) the damage has not been recovered.

2. Defendant 2

The defendant has made a significant contribution to each crime by preparing and granting necessary documents, such as a false report of death, litigation process in the judgment, registration of preservation of ownership, etc. to co-defendant 1, or entrusting a lawsuit to the court in the judgment, etc., taking into account the fact that the amount of damage caused by the fraudulent conduct exceeds KRW 400 million, the damage is not recovered, and the fact that the damage is not recovered, taking into account the following factors into account as the main sentencing factors: the defendant's age, character and conduct, and living environment, etc., and the defendant is being tried to restore the original state to the original state by depositing the money that he or she acquired by his or her relatives to the land purchaser; and the defendant has filed a lawsuit claiming the cancellation of registration of ownership transfer against the land purchaser in the name of non-indicted 5; and Defendant 2 has divided his or her mistake, except for the dispute over the degree of participation in the crime.

1. Partial frauds

Of the facts charged of this case, in collusion with Nonindicted 5, the defendants acquired the status that can obtain the ownership of 252 square meters out of the above Gomo-ri (number 2 omitted) land in the same manner as indicated in paragraph (2) of the judgment of the court below, and acquired it by fraud. According to each of the above evidence, the defendants' decision of recommending settlement with the purport that the above land is being used as a site for a road in a lawsuit filed against the State against the State as stated in the judgment of the court below was confirmed, and thus the defendants did not acquire the status that can obtain the ownership of the above land, and there is no other evidence to acknowledge that the defendants acquired it by acquiring the above status.

Therefore, the facts charged in this part should be found not guilty under the latter part of Article 325 of the Criminal Procedure Act because there is no proof of crime. However, as long as the guilty of attempted fraud in the judgment on the same facts charged is recognized, the sentence of innocence shall not be sentenced separately.

2. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

With respect to the Defendants’ fraudulent conduct, the prosecutor indicted the Defendants by applying Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, which is premised on the fact that the total amount of the individual land price of the instant land is KRW 510,125,800, and that the property gains acquired by the Defendants’ fraudulent conduct exceeds KRW 500,000.

However, the following facts are acknowledged based on each of the above evidence: (a) Nonindicted 14, who was delegated by Nonindicted 5, the secretary general of Nonindicted 6 Law Firm, sold in total KRW 400,000,000,000,000,000,000,000 won of the above Gomo Ri (number 2 omitted); (b) Nonindicted 14 attempted to sell each of the above lands to the same person; (c) although the above Gomo Ri (number 3 omitted), it was stated that the above Gomo Ri (number 3 omitted) land was sold to others without any reasonable reason; (d) there was no material to deem that the purchase price of the above Gomo Ri (number 3 omitted) land was determined relatively lower than the market price; and (e) the total officially assessed land price exceeds KRW 50,00,00,000,000,000,000,000,000,000 won, not the market price of the pertinent land; and (e) there was no material evidence to recognize.

Therefore, the facts charged in this part shall be judged not guilty under the latter part of Article 325 of the Criminal Procedure Act because there is no proof of a crime. However, as long as the guilty of fraud is found in the judgment on the same facts charged, the sentence of innocence shall not be rendered separately

It is so decided as per Disposition for the above reasons.

Judge Lee Jae-sung (Presiding Judge)

1) The crime of attempted fraud in the judgment is the state, and the object of the crime is part of the land which the Defendants had tried to acquire pecuniary benefits through the crime of attempted fraud, and there is no difference between the crime of attempted fraud and the crime of attempted fraud in the judgment. However, it is difficult to view that the crime of attempted fraud in the judgment is incorporated into the crime of fraud in the judgment in the sense that the object of the crime of attempted fraud is distinct from the object of the crime