[1] The meaning of "acquisition" in the crime of stolen acquisition

[2] A case where the court must ex officio recognize facts constituting a crime different from those stated in the indictment without changing the indictment

[3] The case holding that since there is a difference in legal evaluation between the acquisition of stolen goods charged and the criminal facts in the storage of stolen goods which are actually recognized, the court should recognize the criminal facts in the custody of stolen goods ex officio even if there is no change in the facts charged

[1] The term "acquisition" in the crime of acquiring stolen property refers to the acquisition of de facto right to dispose of the stolen property by being transferred, so it cannot be deemed that the stolen property has been acquired merely by simply receiving remuneration, using stolen property as a temporary basis or by taking the stolen property for the purpose of using it as such.

[2] In a case where it is deemed that there is no concern about causing a substantial disadvantage to the defendant's exercise of his/her right to defense in light of the progress of the trial within the scope consistent with the facts charged, the court may, even if the indictment was not modified, recognize ex officio the facts constituting a crime different from the facts charged as stated in the indictment, and in such a case, if the indictment is not punished for the reason that the facts constituting a crime, which was actually acknowledged in comparison with the facts charged for which the indictment was instituted, is not modified, it is recognized that it goes against justice and equity in view of the purpose of the criminal procedure, such as prompt discovery of substantial truth by appropriate procedure

[3] The case holding that since there is a difference in legal evaluation between the acquisition of stolen goods charged and the criminal facts in the storage of stolen goods which are actually recognized, the court should recognize the criminal facts in the custody of stolen goods ex officio even if there is no change in the facts charged

[1] Article 362 (1) of the Criminal Code / [2] Articles 254 and 298 of the Criminal Procedure Act / [3] Article 362 (1) of the Criminal Code, Articles 254 and 298 of the Criminal Procedure Act

[2] Supreme Court Decision 90Do1229 delivered on October 26, 1990 (Gong1990, 2475), Supreme Court Decision 91Do676 delivered on May 28, 1991 (Gong1991, 1831), Supreme Court Decision 93Do3058 delivered on December 28, 1993 (Gong1994, 587), Supreme Court Decision 95Do456 delivered on September 29, 1995 (Gong195Ha, 3652), Supreme Court Decision 96Do7529 delivered on May 10, 196 (Gong196Ha, 1952), Supreme Court Decision 200Do3949 delivered on February 14, 1997 (Gong1994, 209, 19494, 297Do194979 delivered on September 29, 2014).

Defendant

Defendant and Prosecutor

Attorney Kim Young-young

Supreme Court Decision 2002Do5306 Delivered on November 26, 2002

Seoul District Court Decision 2002No9586, 2002No1922 delivered on February 13, 2003

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

1. Judgment on the Defendant’s grounds of appeal

In full view of the evidence duly admitted, the court below recognized that the defendant committed the crime of forging private documents and uttering of falsified documents in the judgment. In light of the records, such measures by the court below are justified, and there is no error of law by misunderstanding facts against the rules of evidence or by misunderstanding the legal principles as to the criminal intent of forging private documents, which affected the conclusion

In addition, the defendant who was sentenced to imprisonment for less than 10 years cannot be deemed as the ground of appeal that the sentence of the court below is too heavy.

Therefore, Defendant’s ground of appeal is without merit.

2. Judgment on the grounds of appeal by the prosecutor

A. The term "acquisition" in the crime of acquiring stolen property means the acquisition of de facto right to dispose of the stolen property by being transferred, so it cannot be deemed that the stolen property has been acquired merely by simply receiving remuneration, using stolen property as a temporary basis or by taking the stolen property for the purpose of using it as such.

In the same purport, the court below is just in holding that the defendant's purchase of goods with credit cards claimed by the non-indicted in his/her possession on the condition that he/she would receive remuneration from the non-indicted and the receipt of the above credit cards does not constitute the acquisition of stolen goods. There is no error of law by misunderstanding the facts or misunderstanding

B. However, in a case where it is deemed that there is no concern about causing a substantial disadvantage to the defendant's exercise of his/her right to defense in light of the progress of the trial within the scope consistent with the facts charged, the court may, even if the indictment was not modified, recognize ex officio a crime different from the facts charged as stated in the indictment, and in such a case, if the indictment is not punished for the reason that the facts charged do not seem to be negligible in comparison with the facts charged, and if the indictment is not modified for the reason that it is not modified, it is recognized that it goes against justice and equity in view of the purpose of the criminal procedure, such as prompt discovery of substantial truth by appropriate procedures, the court shall recognize the facts charged ex officio (see Supreme Court Decision 200Do4419, Nov. 22, 2002

C. However, according to the records, at the time when the defendant received two copies of the above credit card from the police officer to the court below's request for the purchase of goods instead of goods, the defendant stated that the non-indicted was aware that he had obtained the above credit card, and that the charges on the acquisition of stolen goods of this case are also identical to this. When the non-indicted requested the defendant to purchase goods with the above credit card 2 that he acquired at the latest, the intention of illegal acquisition became final and conclusive, and the property acquired due to the embezzlement of stolen goods also constitutes stolen goods. Thus, the defendant's act of receiving the above two copies of the credit card upon the above request by the non-indicted, and the defendant's act of receiving the above two copies of the credit card constitutes a case where the stolen goods under Article 362 (1) of the Criminal Act are kept at least.

D. Ultimately, among the facts charged in the instant case, the fact of acquiring stolen goods and the fact of the crime of keeping stolen goods which are actually recognized are identical to objective facts. However, there are only differences in the legal evaluation as to whether they can be seen as the acquisition of stolen goods, and even if the Defendant is punished for the crime of storing stolen goods, it does not seem to have any substantial disadvantage in exercising the Defendant’s right to defense. Thus, the mere fact that the Defendant did not merely acquire the right to dispose of the above credit card does not contravene the justice and equity in light of the purpose of criminal procedure, i.e., prompt discovery of substantial truth by due process.

E. Therefore, the court below should have judged the defendant as the crime of storing stolen property even without any changes in the facts charged, but without reaching this, it should have tried only whether the defendant's act constitutes the elements of the crime of acquiring stolen property. The court below's decision is erroneous in the misapprehension of legal principles as to the scope of adjudication without any changes in the indictment, which affected the conclusion of the judgment. Thus, the prosecutor's ground of appeal pointing this out is with merit.

3. Conclusion

Ultimately, the prosecutor's appeal on the part not guilty of the judgment below is with merit, and the appeal by the defendant on the remaining part is without merit, but two parts are concurrent crimes under the former part of Article 37 of the Criminal Act, and one sentence shall be imposed. Therefore, the entire judgment of the court below is reversed and the case is remanded to the court

Justices Lee Yong-woo (Presiding Justice)