In a case where the Defendant et al. was indicted on charges of fraud and special larceny by tracking the location of a vehicle as a spact (GPS) attached to the vehicle after the Defendant et al. acquired the purchase price by deceiving the victim et al. to sell the vehicle to the victim Gap et al., the case holding that the lower court erred by misapprehending the legal doctrine in finding the Defendant guilty

In a case where the defendant et al. fraudulently stated that he would sell a motor vehicle to the victim Gap et al., acquired the purchase price, stolen the motor vehicle by tracking the location of the motor vehicle as a sPS (GPS) attached to the motor vehicle in advance, and was prosecuted for fraud and special larceny, the case holding that the court below erred by misapprehending the legal principles in finding the crime of fraud, since the defendant delivered the motor vehicle to Gap et al. and delivered all documents necessary for the transfer of ownership, thereby making it possible for Gap et al. to complete the transfer of ownership at any time, it cannot be deemed that he did not intend to transfer the ownership of the motor vehicle even if he had the intention to steal again after transferring the motor vehicle, and even if the defendant had the intention to steal immediately at the time of selling the motor vehicle, it cannot be said that he had the intention to

Articles 331(2) and 347(1) of the Criminal Act

Defendant

Defendant

Attorney Cho Jae-soo et al. and one other

Supreme Court Decision 2015Do1466 Decided April 9, 2015

Incheon District Court Decision 2015No1180 decided October 16, 2015

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

The grounds of appeal are examined.

1. Of the facts charged in the instant case, the Defendant committed fraud on September 14, 2013 and the summary of the special larceny: (a) the Defendant, along with Co-Defendant 2, did not have any intent or ability to finally transfer the ownership of a motor vehicle in the Stity site even after the receipt of the purchase price; (b) acquired KRW 7,500,00 from the victim Non-Party 1 while making a false statement that he would sell a motor vehicle; and (c) stolen the motor vehicle by tracking the location of the motor vehicle into GPS, which is attached to the motor vehicle in advance. The summary of the fraud as of September 16, 2013 and the summary of the special larceny as of September 17, 2013, the lower court convicted the Defendant of all of the facts charged on the following grounds: (a) by again using the motor vehicle that the Defendant stolen and acquired KRW 7,200,000 by acquiring the victim Nonindicted Party 2 through the same method, and Nonindicted Party 3 occupied the victim’s vehicle.

2. However, it is difficult to accept the lower court’s judgment that found the Defendant guilty of each fraud among the facts charged in this part for the following reasons.

A. On the grounds that the prosecutor did not have the intent or ability to finally transfer the ownership of a passenger car to Nonindicted 1 or Nonindicted 2 even if the Defendant received the purchase price in the facts charged, the owner of the passenger car was Nonindicted 4 and Co-Defendant 2 in the first instance trial only occupied the passenger car as security for the loan claim, and the defendant was willing to immediately steals the vehicle and acquire the purchase price.

B. The record reveals the following facts.

1) As Nonindicted 4 was unable to repay the borrowed money to Nonindicted 5, on September 11, 2013, he purchased a vehicle with the borrowed money borrowed from Hyundai Capital Co., Ltd. and completed the registration in his own name. On September 12, 2013, Nonindicted 4 delivered a vehicle to Nonindicted 5 as security for the borrowed money obligation, and issued a bond registration certificate, a vehicle transfer certificate, a resident registration certificate, a certified copy of his resident registration certificate, a certificate of vehicle abandonment, a letter of delegation, and all documents necessary for the registration of the transfer of ownership of a vehicle, and a passbook to the principal who was newly issued.

2) The “transferr” column of the certificate of vehicle transfer indicates that Nonindicted 4’s seal is affixed to Nonindicted 4, and the certificate of vehicle waiver states that “I will waive the ownership of the vehicle in question and transfer it to the creditor without objection if I fail to pay by the due date, and at the same time I will agree that I will be responsible for the borrower himself/herself, and in selling and selling the said vehicle, I will additionally pay the borrowed money if I purchase and sell the vehicle with a certificate of the personal seal impression issued by him/her and replace and shortage the borrowed money.” The power of attorney states that “I will delegate all the authority to transfer the name of the obligor to the creditor and confirm that I will be responsible for

3) On September 12, 2013, Nonindicted 5 delivered to Co-Defendant 2 all documents necessary for the registration of car and transfer of ownership received from Nonindicted 4 and the passbook of Nonindicted 4, as security for the obligation to borrow money against Co-Defendant 2 of the first instance trial.

4) The Defendant, along with Co-Defendant 2 of the first instance trial, conspiredd with Nonindicted 1 or Nonindicted 2 to steal a vehicle after selling the vehicle and receiving the purchase price, and subsequently, sold the vehicle to Nonindicted 1 or Nonindicted 2, and issued all documents in the name of Nonindicted 4 necessary for the registration of transfer of ownership of the vehicle.

C. In light of the above facts, Nonindicted 4 consented to the disposal of a passenger car by offering a passenger car as security for a loan obligation to Nonindicted 5 and delivering all documents necessary for the registration of the transfer of ownership and the passbook in his name to the head of the Tong. Since Nonindicted 1 or Nonindicted 2 did not have any legal impediment in acquiring the ownership of a passenger car, the circumstance that the owner of the passenger car is Nonindicted 4 and Nonindicted 2 occupied the passenger car as security for a loan obligation cannot be the subject of deception.

D. In order to acquire ownership after the purchase of a motor vehicle, the transfer of ownership is completed until the transfer of ownership. However, if the buyer receives all the documents necessary for the transfer of ownership from the seller along with the motor vehicle, the transfer of ownership can also be completed on his own. Inasmuch as the Defendant becomes able to complete the transfer of ownership of a motor vehicle at any time by delivering the motor vehicle to Nonindicted 1 or Nonindicted 2 and delivering all the documents necessary for the transfer of ownership to Nonindicted 1 or Nonindicted 2, even if the Defendant had an intention to steal a motor vehicle after transferring the motor vehicle, it is merely a criminal plan that would bring about economic effects such as acquiring the purchase price by acquiring the motor vehicle again, but it cannot be deemed that he did not intend to transfer the ownership of a motor vehicle. Rather, deeming that the Defendant had an intention to transfer the ownership of a motor vehicle to Nonindicted 1 or Nonindicted 2 once he had an intention to acquire the ownership of a motor vehicle after transferring the motor vehicle from the beginning. Moreover, it cannot be said that the Defendant deceiving the Defendant directly with the intention to steal the motor vehicle immediately at the time of sale of the motor vehicle.

E. Ultimately, even if the Defendant did not commit deception at the time of selling a passenger car to Nonindicted 1 or Nonindicted 2, the lower court convicted him of the fraud of September 14, 2013 among the instant facts charged and of the fraud of September 16, 2013, thereby adversely affecting the conclusion of the judgment by misapprehending the legal doctrine on the deception of fraud.

3. Of the lower judgment, the facts of fraud as of September 14, 2013 and of fraud as of September 16, 2013 among the lower judgment should be reversed for the foregoing reasons. Since the lower court rendered a single sentence on the grounds that the relevant part and the remainder of conviction are concurrent crimes under the former part of Article 37 of the Criminal Act, the lower judgment is reversed in its entirety.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)