[1] Where the exercise of rights by deception constitutes a crime of fraud

[2] The case holding that the act of deception constitutes fraud in a case where the defendant, an agent of the mortgagee-mortgage, obtained an original copy of the decision to commence auction by forging a power of attorney under the name of the debtor and owner

[1] In the case of the exercise of rights by means of deception, if the act belonging to the exercise of rights and the act of deception belonging to the said means are comprehensively observed, and such deception cannot be acceptable as a means of exercise by social norms, the act of exercise of rights constitutes fraud.

[2] In a case where the defendant, an agent of the mortgagee-mortgage, was delivered a certified copy of the decision on commencing auction by forging and submitting to the court the power of attorney in the name of the victim to delegate the receipt of documents, such as the certified copy of the decision on commencing auction, although he/she was not entitled to receive the certified copy of the decision on commencing auction on behalf of the debtor and owner, the case holding that the above act constitutes deception

[1] Article 347 (1) of the Criminal Code / [2] Article 347 (1) of the Criminal Code

[1] [2] Supreme Court Decision 2002Do6410 Decided June 13, 2003 (Gong2003Ha, 1557) Supreme Court Decision 2003Do4914 Decided December 26, 2003 (Gong2004Sang, 298) Supreme Court Decision 2007Do1780 Decided May 10, 2007

Defendant

Defendant

Incheon District Court Decision 2008No1363 Decided December 19, 2008

The appeal is dismissed.

We examine the grounds of appeal.

1. As to the forgery of private documents and the uttering of private documents

In full view of the evidence duly admitted by the court of first instance and the court below, it is just for the court below to find the defendant guilty of forging private documents and uttering of falsified investigation documents among the facts charged in this case, and there is no violation of the rules of evidence as alleged in

2. As to the attempted fraud

In the case of exercise of rights by means of deception, if the act belonging to the exercise of rights and the deception belonging to such means are comprehensively observed, and such deception cannot be acceptable as a means of exercise of rights by social norms, the exercise of rights constitutes fraud (see, e.g., Supreme Court Decisions 96Do1405, Oct. 14, 1997; 2007Do1780, May 10, 2007).

As in the instant case, although the Defendant, an agent of the mortgagee, was not entitled to receive the authentic copy of the decision on commencing auction on behalf of the debtor and owner, the act of obtaining an authentic copy of the decision on commencing auction by forging and submitting to the court a power of attorney under the victim’s name that delegates the receipt of documents, such as the authentic copy of the decision on commencing auction, and allowing the progress of the auction procedure by obtaining an authentic copy of the decision on commencing auction from the court cannot

In the same purport, the court below is just in finding the defendant guilty of attempted fraud, and there is no violation of the rules of evidence and misapprehension of legal principles as to fraud, as alleged in the grounds of appeal.

3. Conclusion

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

Justices Jeon Soo-ahn (Presiding Justice)