Whether a lawsuit fraud crime is established even if the contents of a judgment obtained by deceiving a court are consistent with the intent of the other party to the lawsuit (negative)

In a lawsuit fraud, the judgment of the court, which is the defrauded, should have the content and effect in lieu of the victim’s dispositive act. As such, in a case where the Defendants conspired with others to file a lawsuit against the said dispositive act, or where the contents of the judgment that the Defendants intended to have the said dispositive act by deceiving the court conforms to the intent of the other party to the lawsuit, it cannot be said

Article 347(1) of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995)

Supreme Court Decision 83Do1566 Decided October 25, 1983 (Gong1983, 1784) Supreme Court Decision 85Do2189 Decided July 22, 1986 (Gong1986, 1145)

Defendant 1 and fourteen others

Prosecutor

Attorney Yang Chang-won

Gwangju District Court Decision 96No79 delivered on April 26, 1996

The appeal is dismissed.

The prosecutor's grounds of appeal are examined.

1. On the first ground for appeal

According to the reasoning of the judgment below, the court below held that the above defendants were purchased from the above non-indicted 8's shot in collusion with the above non-indicted 8's shot, and that the above defendants were not purchased from the defendant 1, 2, 3, and 4 on behalf of all the shot-ris around the above shot-ri, and that the above defendants were not purchased from the above non-indicted 8's shot-ri's 19's shot-ri's shot-ri's shot-ri's shot-ri's 9's shot-ri's shot-ri's 9's shot-ri's shot-ri's shot-ri's shot-ri's shot-ri's shot-ri's shot-ri's 9's shot-ri's shot-ri's shot-ri's s.

In order to establish fraud in a lawsuit fraud, even though it is well aware of the fact that the right of assertion does not exist at the time of the lawsuit, the act of deceiving the court by false assertion and proof, and simply recognizing the fact or purchasing a right that does not exist due to any mistake in legal evaluation, does not constitute fraud. However, even according to the fact established by the court below, Defendant 1, 2, and 3 did not directly purchase the case from the above No. 1 who represented the owner of the case, but attempted to purchase part of the case from the above No. 1, 2, and 3 who had already concluded a contract with the above No. 3, and did not purchase it by paying the purchase price for the part that they would purchase, despite the notice of the above No. 1, 2, and 3. The defendants, who were the residents of the neighboring areas of the maintenance of the case, also decided to return the maintenance of the case to the co-ownership of all members of the No. 1, the court below concluded a sales contract with the above No. 1, 2, and there were no legitimate intent or legitimate intent to prove that the above Defendants did not have any legal intent.

2. On the second ground for appeal

In a lawsuit fraud, the judgment of the court, which is the defrauded, should have the content and effect in lieu of the victim's dispositive act. Therefore, in a case where the defendants conspired with others and filed a lawsuit against the dispositive person, or the contents of the judgment that the defendants attempted to mislead the court, are consistent with the intent of the other party to the lawsuit, it cannot be said that there is an act of delivering property by mistake, and thus, the crime of fraud is not established (see Supreme Court Decision 83Do1566, Oct. 25,

According to the records, this title was delegated by the Park Jong-ho, the owner of the above maintenance of this case with all the powers including the power of disposition in the lawsuit regarding the maintenance of this case. The defendants filed a civil lawsuit against the above Park Jong-ho with prior consent from the above Lee Ho-ho, and this title is sufficient to recognize the facts that he intended to transfer the ownership of the maintenance of this case to all the mons including the defendants through the judgment of the above civil lawsuit, and so it is sufficient to recognize the facts that he tried to transfer the ownership of the maintenance of this case to all the mons including the defendants. Thus, the fact-finding and the judgment of the court below that the defendants' act does not constitute a lawsuit fraud is all legitimate, and there is no violation of the rules of evidence or any misapprehension of legal principles

Furthermore, the court below held that the above civil procedure is not closed immediately and requires a considerable date shall be the participation of the parties, and since the Republic of Korea is limited to the participation of the defendant on the part of the defendant, it shall not be deemed that the intent of the defendant in the above lawsuit does not coincide with that of the defendant in the end room and the defendant in the above lawsuit on the ground that the lawsuit has not been closed immediately, and since the suffering of participating in the lawsuit as a party in the lawsuit cannot be deemed as a damage to fraud, the above civil procedure is not immediately closed, the defendants' act does not constitute a fraud. In light of the records, the judgment of the court below is just and there is no error such as the theory of lawsuit.

All arguments are without merit.

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

Justices Chocheon-sung (Presiding Justice)