Defendant

Defendant

O.O.S.C.

Law Firm Sejong, Attorneys Lee Dong-gu et al.

Suwon District Court Decision 2008Ma1589 Decided November 28, 2008

The judgment of the court below is reversed.

The sentence of sentence against the defendant shall be suspended.

Of the facts charged in this case, the obstruction of another’s exercise of rights is acquitted.

1. Summary of grounds for appeal;

A. Fact-finding and misapprehension of legal principles

1) As to obstruction of another’s exercise of rights

① The five dump truck (vehicle number 1 omitted), (vehicle number 2 omitted), (vehicle number 3 omitted), (vehicle number 4 omitted), (vehicle number 5 omitted), (vehicle number 5 omitted), which is the object of the instant lease agreement, is owned by Nonindicted Co. 3, and the Defendant merely is an employee in charge of debt collection of the said company, and thus, it cannot be deemed that the said dump truck constitutes “self-owned goods” which are the object of the crime of obstruction of rights.

② According to the terms of the instant lease agreement, Nonindicted Co. 3 may take all measures, such as removal of leased articles, to recover the remaining claims, and the Defendant obtained prior consent from the victim company by notifying the victim company several times before recovering the leased truck. Thus, the Defendant cannot be deemed to have “dump truck” against the intent of the victim company, and the Defendant did not have any intention to commit a crime.

2) As to larceny

① The three dump truck (vehicle number 6 omitted), (vehicle number 7 omitted), (vehicle number 8 omitted), and (hereinafter “dump truck”) subject to the instant contract for the installment sale cannot be deemed to belong to the victim company until the victim company completely pays the price. Thus, it does not constitute “other person’s property” subject to the instant contract for the installment sale.

② Since Nonindicted Co. 2 and the victim company obtained prior consent from the victim company through the contents of the agreement on the establishment of the right to collateral security and the Defendant’s prior notification, the Defendant cannot be deemed to have cut off the instant installment truck against the intent of the victim company.

B. The point of unfair sentencing

Even if the defendant's conviction is recognized, the sentence imposed by the court below (the 2 years of suspended execution in August and 160 hours of community service order) is too unreasonable.

2. Determination

A. As to the assertion of mistake of facts and misapprehension of legal principles as to obstruction of another’s exercise of rights

Comprehensively taking account of the evidence duly examined and adopted by the lower court and the trial, Article 3(5) of the instant lease agreement provides that “In spite of the registered title of the leased object, the victim company shall confirm that the ownership of the object was in the non-indicted 3 corporation during the lease period and shall not claim all ownership of the object.”

In principle, acquisition and loss of the ownership of a motor vehicle or heavy machinery (or construction machinery) shall take effect by registering the acquisition and loss of the ownership of the motor vehicle or heavy machinery, unless it is registered, and in the internal relationship between the parties, ownership shall not be acquired. However, in special circumstances such as where the parties agree to hold ownership between persons other than the registered titleholder, an internal relationship shall be held by a person other than the registered titleholder (see Supreme Court Decision 2006Do498, Jan. 11, 2007). Meanwhile, the crime of obstruction of right under Article 323 of the Criminal Act is established by interfering with another's exercise of rights by taking, concealing, or destroying his own property which is the object of another person's possession or right. Thus, there is no room to establish interference with the exercise of rights if the concealed or damaged article is not its own property (see Supreme Court Decision 200Do5767, May 30, 203, etc.). However, even if the above defendant did not possess a dump truck from the victim's.

Therefore, the court below found the defendant guilty on this part of the facts charged because there is no proof of crime. The court below erred by misapprehending the legal principles or by misunderstanding facts, which affected the conclusion of the judgment, so this part of the defendant's assertion is reasonable (On the other hand, as long as the defendant's above assertion is reasonable, the remaining argument about mistake of facts and misunderstanding

B. As to the assertion of mistake of facts and misapprehension of legal principles as to larceny

Comprehensively taking account of the evidence duly examined and adopted by the court below and the trial court, the victim company purchased dump truck of this case from the non-indicted 2 corporation on December 2007, to reserve the ownership of the above dump truck of this case to the non-indicted 2 corporation, and registered the victim company as its owner on the construction machinery register. In order to guarantee the victim company's obligation to pay for installment sale to the non-indicted 2 corporation, the establishment of a collateral security was registered on the above dump truck of this case in the name of the non-indicted 2 corporation. The victim company occupied the above dump truck of this case; the defendant recovered the dump truck of this case on May 15, 2008 and May 27, 2008 on the ground of delinquency in paying for installment sale by the victim company.

However, in the Criminal Act, theft means the removal of possession of the object owned by a person other than himself/herself against the will of the possessor and the transfer of it to his/her or a third party. Even though the right to claim delivery, etc. based on the agreement is acknowledged, theft is established by excluding possession against the will of the possessor unless it is acknowledged that the possessor explicitly and implicitly consented to the transfer of possession at the time of possession, unless there is an explicit or implied consent of the possessor, and in such a case, there is no intention to acquire the illegal acquisition (see Supreme Court Decision 201Do4546, Oct. 26, 2001, etc.).

Therefore, if the facts are as above, it is externally separate from the internal relationship between the non-indicted 2 corporation and the victim corporation, the owner of the original register is the owner who is obligated to pay public charges, etc. with rights, such as disposal rights, and the liability of the owner of construction machinery. The defendant's act of bringing dump trucks on the ground of delinquency in the installment sale price constitutes a theft against the victim's intent. The defendant's statement made by non-indicted 5 witness alone does not interfere with the establishment of the above criminal facts. The defendant's claim for temporary repayment of lease fees was made in accordance with the loss clause of profits under the basic terms and conditions of credit transaction, and it was prepared to provide information on your property, and the defendant's assertion that "It is difficult to recognize that the defendant's act of taking dump trucks is an act of infringement against the victim's intent, and it can not be seen that it actually included in the above agreement or agreement to exclude the defendant's possession or lease without the victim's consent."

3. Conclusion

Therefore, the part of the judgment of the court below on obstruction of the exercise of rights should be reversed, and the remaining larceny relation to the concurrent crimes under the former part of Article 37 of the Criminal Act. In this respect, the judgment of the court below cannot be maintained any more. Thus, the judgment of the court below shall be reversed in accordance with Article 364 (6) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and

The Defendant is a person in charge of collecting claims against customers in arrears in Nonindicted Co. 3.

Around December 2005, the victim Nonindicted Co. 1 purchased three dump truck (vehicle number 6 omitted), (vehicle number 7 omitted), and (vehicle number 8 omitted) from Nonindicted Co. 2 Co. 2 to KRW 143 million per vehicle (total amount of KRW 429 million), took out a loan from Nonindicted Co. 3, and paid the purchase price from Nonindicted Co. 3, and used the vehicle for KRW 2,88,820 per month on a 48-month basis.

When the victim did not pay the loan from February 2008, the defendant recovered the above vehicle and received a mind to resolve the overdue payment.

1. Around 22:00 on May 15, 2008, the Defendant: (a) driven a dump truck (vehicle number 8 omitted) on the front of Nonindicted Co. 1 Company, which was located on the ○○○○○ Ri, on the road in front of the Nonindicted Co. 1 Company; and (b) on the part of the truck manufacturer company, using the vehicle height previously received from the truck manufacturer, and stolen it.

2. On May 27, 2008, the Defendant: (a) driven two dump trucks owned by the victim (vehicle number 6 omitted); and (b) dump trucks (vehicle number 7 omitted) in the same manner as the above 1. on the way in which the Defendant was located in ancient-si, Goyang-si, Goyang-si.

1. Partial statement of the defendant;

1. The prosecutor's protocol of interrogation of the defendant (including the substitute part against non-indicted 4)

1. The police statement of Nonindicted 4

1. Each registration certificate, each construction machinery sales contract;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 329 (Selection of Punishment by Fines)

1. Aggravation of concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. The type to be suspended;

Fines 3,000,000

1. Detention in a workhouse;

Articles 70 and 69(2)(50,000 won per day) of the Criminal Act

1. Suspension of sentence;

Article 59(1) of the Criminal Act (In light of the fact that the defendant has no previous record of the same kind, and that an employee in charge of debt collection of the company committed the instant crime in the course of performing his duties according to the company's instructions

As seen in Article 2-1(a) of the Criminal Procedure Act, the obstruction of the exercise of rights in the facts charged of this case constitutes a case where there is no proof of a crime, and thus, it is so decided as per Disposition by the court below.

Judges Park Jae-sik (Presiding Judge)