Whether punishment should be exempted for a criminal who commits a crime of fraud in case where a person deceptions a court to acquire property from a third party who is in the relationship of lineal blood relatives (affirmative)

Articles 328(1), 347, and 354 of the Criminal Act

[Plaintiff-Appellant] Plaintiff 1 et al. (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Defendant

Defendant

Attorney Lee Jong-hoon

Daejeon District Court Decision 2014No566 decided June 12, 2014

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

The grounds of appeal are examined.

1. As to the ground of appeal on the attempted fraud

A. The protected legal interest in fraud is a property right. Therefore, in the case of fraud, a person who has property right or a victim cannot be the victim. Therefore, in the case of deception by a court from a third party, the court, the defrauded, cannot be the victim, and in the case where a third party who has acquired property by deception, is the victim, so if a third party who is the victim and a person who commits fraud are related to a lineal blood relative, the punishment shall be exempted in accordance with Article 328(1) of the Criminal Act applied mutatis mutandis by Article 354 of the Criminal Act (see Supreme Court Decision 75Do781, Apr. 13, 1976).

B. According to the reasoning of the lower judgment and the record, the Nonindicted Party and the Defendant, the victim of the attempted fraud, are aware that they have a lineal blood relative relationship with each other. Therefore, the lower court should have exempted the Defendant from punishment by applying Articles 354 and 328(1) of the Criminal Act with respect to the attempted fraud among the facts charged in the instant case.

Nevertheless, the lower court did not exempt the offender from punishment for attempted fraud, but convicted him/her of the substantive judgment, and determined the remainder of the crime together with the crime. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of application of the case of victims and relatives in the course of fraud by litigation.

2. As to the ground of appeal on the fabrication of private documents and the uttering of private documents

Examining the reasoning of the lower judgment in light of the evidence admitted by the lower court, it is justifiable to have determined that the lower court guilty of forging private documents and uttering of falsified private documents among the facts charged in the instant case on the grounds as indicated in its reasoning, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on

3. Scope of reversal

Of the judgment below, the charges for attempted fraud should be reversed on the grounds as seen earlier, and the court below rendered a single punishment by deeming the fact of attempted fraud and the remaining criminal facts as concurrent crimes under the former part of Article 37 of the Criminal Act. Accordingly, the entire judgment of the court below should be reversed.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young (Presiding Justice)