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The prosecutor's appeal is dismissed.
Reasons
1. According to all the evidence of the summary of the grounds for appeal (misunderstanding of the facts), the court below erred in finding the Defendant not guilty of the facts charged of this case due to mistake of facts, although it is sufficiently recognized that the Defendant had the criminal intent to acquire by deception.
2. Determination
A. On June 2, 1997, the summary of the facts charged is that the Defendant was awarded a successful bid of KRW 85 million with the victim Kim Jong-si and four parcels of land (hereinafter “instant land”) including Kim Jong-si, Kim Jong-si, and entered into a trust agreement with the content that the Defendant would recognize the Defendant’s shares as 1/2 and E’s shares as 1/4, respectively.
On November 24, 2004, the Defendant demanded the victim to set up a collateral on the land of this case in order to secure the claim, etc. according to the above ratio of shares. As the victim was a person with the right to set up a collateral on the land of this case, the victim was a person with the right to set up a collateral (hereinafter “mortgage of this case”). On October 27, 2008, the victim became a person with the right to set up a collateral on the land of this case with the right to set up a collateral on the maximum claim amount of 60 million won.
The Defendant around January 2010, at the victim’s house located in the Namwon-si F, there is a lack of rent to be paid to the victim to G, the owner of the building site of the above solar power plant, seeking to operate a solar power plant.
G intends to set up a collateral security to provide the instant land as security.
D. At the 5-6-month period, G’s establishment of the first priority right was cancelled, and G’s establishment of the first priority right was restored, or the instant land was sold to a third party, and the purchase price was divided according to the share ratio.
However, the defendant wishes to recover the first priority right of the victim even if the victim has terminated his/her first priority right.