[1] In a case where a provisional seizure is executed as a result of the completion of the registration for entry into the register of real estate, whether a public official under Article 140(1) of the Criminal Act can be deemed to have made an indication of seizure and other compulsory dispositions in relation to his duties (negative), and in a case where trees, etc. are cut out in the forest where the registration for provisional seizure was completed, whether a public official may be deemed to have harmed the indication of compulsory dispositions that he performed in relation to his duties (negative)

[2] The case holding that even if the defendant, the owner of real estate, went through capitalizing the trees planted above, it does not constitute a crime of interference with the exercise of rights against the above successful bidder on the ground that it cannot be deemed that he acquired the "Possession" or "right" under Article 323 of the Criminal Code as to the trees planted above the forest trees merely because he was awarded the successful bid in the voluntary auction procedure

[1] The provisional attachment or other compulsory disposition stipulated in Article 140 (1) of the Criminal Code refers to an indication especially conducted to specify attachment or other compulsory disposition, such as a public notice or notice board, and it is difficult to conclude that the provisional attachment or provisional attachment or provisional disposition with regard to real estate was executed by a public official, such as an execution officer, but not by a public notice or notice board, but by a method of entering the judgment of the provisional attachment in the register [see Article 710 (1) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002)] because the provisional attachment or provisional disposition was completed upon completion of registration, and it is difficult to conclude that a public official, such as an execution officer, etc. conducted the provisional attachment or other compulsory disposition with regard to his/her duties separately from the forest and field, and the provisional attachment or provisional disposition cannot be readily concluded that a public official, such as the execution officer, installed a notice board, etc. to specify it.

[2] The case holding that even if the defendant, the owner of real estate, went through capitalizing the trees planted above, it does not constitute a crime of interference with the exercise of rights against the above successful bidder, on the ground that it cannot be deemed that he acquired the "Possession" or "right" of trees planted above the forest land merely because he was awarded the successful bid in the voluntary auction procedure

[1] Article 140(1) of the Criminal Act, Article 710(1) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002), and Article 323 of the Criminal Act / [2] Article 323 of the Criminal Act

A

Prosecutor

Present Quarrying

Law Firm B, Attorneys C et al.

Seoul District Court Decision 2002Ma1717 delivered on March 25, 2003

The prosecutor's appeal is dismissed.

The charge of obstruction of another’s exercise added in the first instance shall be acquitted.

1. Determination on the grounds for appeal

A. Summary of grounds for appeal

According to each of the evidence and evidence submitted by the prosecutor and each of the original trials held by D, E, F, G, and H, the defendant erred by misapprehending the facts against the rules of evidence or by misapprehending the legal principles on facts or by misapprehending the rules of evidence, thereby adversely affecting the conclusion of the judgment, by rejecting each of the above evidence submitted by the prosecutor without any reasonable grounds and by rendering only the defendant's unilateral statement as evidence, which affected the registration of provisional seizure of real estate (hereinafter referred to as "registration of provisional seizure of this case") under the order of provisional seizure of real estate by the government branch of Seoul District Court 9Kadan505, as shown in the following facts:

(b) Markets:

(1) As to the invalidity of indication in the line of duty

(A) Summary of the facts charged

After the provisional attachment registration of this case was completed on May 3, 199, the Defendant acquired the ownership of the forest land of this case and the bank trees, red scare trees, etc. planted on the land of this case, on November 28, 2000 and the bid price of this case was awarded on May 15, 2001, but around December 18, 2000, the Defendant took possession of the ownership of the forest land of this case by a public official who took the provisional attachment disposition of this case on August 3, 199, as to the duties of the bank trees planted on each of the forest of this case, 45 glue trees and 2 glue trees, and 9 glue trees marked on each of the forest of this case on March 17, 201, and on March 23, 2001.

(b) the sales board;

The Defendant consistently denied this part of the facts charged from the police to the trial court, and asserts that he did not have any fact by recklessly capitaling the above bank trees, etc. planted in each forest of this case at the time and time indicated in the facts charged. On the other hand, the prosecutor submitted the evidence consistent with the above facts charged, such as D’s police and prosecutor’s office, each statement at the court of original instance, E’s police and court of original instance, each statement at the police and court of original instance, and H’s each statement at the court of original instance. Accordingly, the examination of each of the above

First, the part of the statement to the effect that the defendant, among the statements made in D police and prosecutor's office and in the court of original trial on December 18, 200, deemed 45 gye and gye 2 gye gye gye gye gye gye gye gye gye gye gye gye gye gye gye gye gye gye gye in each forest of this case from the original prosecutor's office around the date and time indicated in the above facts charged (the statement made by the prosecutor's office about D and the investigation records No. 92 gye gye gye gye gye gye gye gye gye gye gye gye gye gye gye gye g.

Next, the E’s police and the lower court’s statement in each of the above facts charged to the effect that, although the Defendant did not see that he saw a bank tree, etc. from each of the instant forests and fields as stated in the facts charged, the Defendant discovered that the above tree, etc. was destroyed in each of the above forests and fields at the time, it is insufficient to recognize this part of the facts charged even based on the E’s statement

Finally, H’s statement in the lower court’s trial is not directly deemed to have taken the Defendant ging out the bank trees, etc. from each forest of this case, but it stated to the effect that the Defendant ging out the above trees, etc. from the surrounding persons at the time. As such, it is insufficient to recognize this part of the facts charged even according to H’s statement.

Therefore, the above evidence submitted by the prosecutor alone is insufficient to readily conclude that the defendant saw the above bank trees, etc. in each forest of this case as stated in this part of the facts charged, and there is no other evidence to acknowledge it.

In addition, "labeling of seizure and other compulsory measures" under Article 140 (1) of the Criminal Act refers to an indication especially conducted to specify seizure and other compulsory measures such as public notice and notice board, etc. The execution of provisional seizure on real estate such as this case is not an indication of compulsory measures such as public notice and notice board to specify the purpose of the provisional seizure but an entry of provisional seizure in the register for the judgment of provisional seizure (refer to Article 710 (1) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002). It is difficult to readily conclude that provisional seizure has been executed with the completion of registration of provisional seizure and it has been made by public officials such as execution officer, etc., and it is also difficult to conclude that the execution of provisional seizure was made with attachment and other compulsory measures, and even if the above provisional seizure is made separately from each of the above forests and fields, it is not sufficient to conclude that there is no evidence to deem that each of the above defendant's provisional dispositions such as the above public official had been made in the above case.

Therefore, this part of the facts charged against the defendant constitutes a case where there is no proof of a crime, and thus, the defendant must be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act. The judgment of the court below in the same purport is just, and there is no error of misunderstanding of facts or misunderstanding of legal principles as alleged in the prosecutor's

(2) As to larceny

(A) Summary of the facts charged

After the provisional attachment registration of this case was completed on May 3, 199, pursuant to the Seoul District Court's 99Kadan5505, the Defendant acquired ownership by completely paying the above successful bid price on November 28, 2000 and on May 15, 2001, in relation to each of the forest of this case as well as the above bank trees, etc. planted on the land of this case, the Defendant stolen ownership by cutting off DNA bank trees 9gs owned by the victim from each of the forest of this case on May 18, 2001.

(b) the sales board;

The Defendant consistently denied this part of the facts charged from the police to the trial court, and asserts that he did not have any fact by recklessly cutting the above bank trees from each forest of this case at the time stated in the facts charged. On the other hand, the prosecutor submitted the evidence corresponding to the above facts charged, such as D’s police and prosecutor’s office, prosecutor’s office, police and prosecutor’s office at the court below, E’s police and prosecutor’s office at the court below, and each statement at the court below’s court below, F, and H’s respective statements. Accordingly, the examination of each evidence

First, on May 18, 201, each statement in D police, prosecutor's office, and court of original judgment does not directly see that the defendant 9% of bank trees was cut out from each forest of this case, but merely found that the above trees were destroyed in each forest of this case on that day, and that the defendant did not take out the above trees from the surrounding persons, and then the police and court of original judgment did not directly consider that the above trees were cut out from each of the forest of this case, but it was not directly determined that the defendant taken out the above bank trees from each of the forest of this case. Further, the statement in F's court of original judgment was found that the above trees were destroyed in each of the forest of this case at the time when the defendant acquired them from the farm of this case, but it was not sufficient to conclude that the above trees were cut out from each of the forest of this case, and that the defendant did not directly take out the above trees from the forest of this case at each of the above 0th court.

Therefore, each of the above evidences presented by the prosecutor alone is insufficient to recognize this part of the facts charged, and there is no other evidence to acknowledge this part of the facts charged. Accordingly, this part of the facts charged constitutes a case where there is no evidence to prove a crime, and thus the defendant shall be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act. In this regard, the fact-finding and judgment of the court below in the same purport is just, and it cannot be deemed that there is an error

2. Judgment on the ancillary facts charged

The prosecutor shall keep the facts charged as to the invalidation of the above indication of official duties from among the facts charged in the second trial of the court at the same time, and the defendant shall make a preliminary application for the additional sale of the forest land in this case and the bank trees, etc., planted on the ground of the other creditors around August 16, 200 when the registration of establishment and provisional seizure, etc. was completed with respect to each of the forest land in this case owned by him, and on November 28, 2000, the victim D awarded a successful bid and paid 7.3 million won for the bid deposit, and then the defendant kept each of the above forest land in custody on December 18, 200, and then the defendant applied for the additional sale of the said forest land in this case at the same place on March 17, 201, and examine the amendment of the indictment with respect to each of the above three separate provisions of the Criminal Act with the right to amend the indictment with the same condition as the victim's right to use the additional sale of the forest in this case.

In this case, as seen earlier, there is no evidence to prove that the defendant taken the above bank trees, etc. in each forest of this case on the date and time indicated in the facts charged, and even if it is acknowledged that the defendant taken the above bank trees, etc. in each forest of this case at the time and time, in order to establish the obstruction of the exercise of rights as stipulated in Article 323 of the Criminal Act, in order to establish the obstruction of the exercise of rights as stipulated in Article 323 of the Criminal Act, it is necessary to interfere with the exercise of rights by taking, concealing, or destroying his own goods, etc. which are the object of another person's possession or right. In this case, according to the prosecutor's statement protocol as to D in this case, the victim participated in the voluntary auction procedure as to each forest of this case and won the above forest of this case on November 28, 200, but this part was awarded the successful bid on May 15, 201, which was after the obstruction of rights had already been terminated, there is no evidence or evidence to acquire the above real right.

Therefore, since the aforementioned ancillary facts charged on the premise that D occupied the above bank trees, etc. planted in each forest of this case owned by the defendant or acquired certain rights thereto constitute a case where there is no proof of crime, it is also determined not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act.

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, and it is so decided as per Disposition by the assent of all participating Justices.

Judges Shin Young-Jon (Presiding Judge)