[1] The measures to be taken by the court where it is proved that the property victim of the prosecuted charge and the victim stated in the indictment are different

[2] In a case where a false mortgagee was paid dividends in the distribution procedure for the proceeds of sale of real estate by filing an application for a voluntary auction against a debtor or real estate owned by a person who had the right to collateral security by deceiving a court of execution or not having any secured claim, whether the preparation of a distribution schedule by the court of execution and the delivery of dividends therefor have the content and effect in lieu of the buyer's disposal act

[3] In a case where: (a) the Defendant prepared a false loan certificate under the name of Party A, and completed the registration of establishment of a mortgage on the real estate owned by Party A; (b) subsequently, the Defendant applied for an auction of real estate rent and obtained dividends from the Defendant; and (c) the Defendant was prosecuted for fraud, the case holding that the lower court erred by misapprehending the legal doctrine and acquitted the Defendant, without considering who is the genuine victim, even though the actual victim was the purchaser of the real estate; and (b)

[1] In a case where it is proved that the identity of the facts charged is different from the victim as stated in the indictment, the victim in the indictment shall be found guilty by pointing out the other actual victims as stated in the indictment ex officio without due process of modification of indictment, unless the identity of the facts charged is disturbed and substantial disadvantage is not inflicted on the defendant

[2] Even if a real estate has been sold as a result of the auction by applying for a voluntary auction on the real estate owned by a debtor or a person who has pledged a property to secure another's property by deceiving a court of execution by deceiving a court of execution or without any secured claim, such auction procedure is null and void, and the debtor or the person who has pledged a property to secure another's property cannot acquire the ownership

In such a case, if the false mortgagee was to receive the dividend in the distribution procedure for the proceeds of sale, the preparation of a distribution schedule by the court of execution and the delivery of the dividend therefrom shall be effective as an act that directly causes property damage by disposing of his/her property in relation to the buyer, and as an act in lieu

[3] In a case where: (a) the Defendant prepared a false loan certificate in the name of Party A, and completed the registration of establishment of a mortgage on real estate owned by Party A; (b) subsequently, the Defendant applied for an auction of real estate in the name of Party A and obtained dividends therefrom; and (c) was prosecuted for fraud, the case holding that the lower court erred by misapprehending the legal principles on the disposal of fraud, the identity of the facts charged, and the scope of adjudication, as long as the identity with the facts charged is recognized and the Defendant does not disadvantage the Defendant’s exercise of his/her right of defense, and thus, should not immediately render a verdict of innocence for the Defendant; and (b) the actual victim following the facts charged is the real estate purchaser; and (c) the crime is established in relation to Party A, and thus, the lower court acquitted the Defendant of the facts charged

[1] Article 347 of the Criminal Code, Article 298 of the Criminal Procedure Act / [2] Article 347 of the Criminal Code, Articles 186 and 187 of the Civil Code / [3] Article 347 (1) of the Criminal Code, Article 298 of the Criminal Procedure Act

[1] Supreme Court Decision 87Do2168 delivered on December 22, 1987 (Gong1988, 381), Supreme Court Decision 2001Do6876 Delivered on August 23, 2002 (Gong2002Ha, 2258) / [2] Supreme Court Decision 75Da1994 Delivered on December 9, 197, Supreme Court Decision 2006Da72802 Delivered on February 26, 2009

Defendant

Prosecutor

Changwon District Court Decision 2012No1068 decided December 21, 2012

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

The grounds of appeal are examined.

1. The summary of the facts charged of this case is as follows: although the defendant did not have a claim of KRW 20,00,000 against the non-indicted victim, the defendant falsely prepared a certificate of borrowing in the name of the victim, and the defendant completed the registration of the establishment of a neighboring mortgage in the name of the defendant with respect to the loan borrowed from the judgment of the court below (hereinafter "the loan of this case") owned by the victim, and accordingly, acquired dividends of KRW 10,880,885 by applying for an auction of real estate rent on the loan of this case.

In regard to this, the court below affirmed the first instance judgment which acquitted the Defendant of the facts charged, on the ground that, even if the Defendant received dividends in the distribution procedure due to the progress of the voluntary auction procedure following the registration of creation of a neighboring mortgage, which is null and void as the facts charged, such auction procedure is null and void, and the victim did not lose ownership of the loan of this case, and the buyer did not acquire ownership, and the buyer can file a claim for restitution of unjust enrichment with the Defendant who did not acquire ownership. Thus, the court's voluntary auction procedure cannot be deemed as effective

Where it is proved that the identity of the facts charged and the victim stated in the indictment are different from those of the accused, the accused should be convicted by pointing out ex officio other actual victims than the victim stated in the indictment without due process of modification of indictment, unless the identity of the facts charged is disturbed and substantial disadvantage is given to the accused to exercise his right to defense (see Supreme Court Decisions 87Do2168, Dec. 22, 1987; 2001Do6876, Aug. 23, 2002, etc.).

Therefore, as long as the identity of the facts charged in the instant case is recognized and the victim does not disadvantage the defendant's exercise of his right to defense, it should be punished as a crime of fraud against the victim by leaving true victims not guilty immediately because the victim is not the non-indicted as stated in the indictment.

2. From this perspective, in this case, it is necessary to examine who is the true victim of fraud.

Even if the real estate is sold in the process of auction by deceiving the court of execution by deceiving the mortgagee and applying for a voluntary auction on the real estate owned by the debtor or the person who has pledged the property to secure another's property, the auction procedure is null and void, and the debtor or the person who has pledged the property to secure another's property cannot acquire the ownership of the real estate (see Supreme Court Decisions 75Da1994, Dec. 9, 1975; 2006Da72802, Feb. 26, 2009, etc.).

In such a case, if the false mortgagee was to receive the dividend in the distribution procedure for the proceeds of sale, the preparation of a distribution schedule by the court of execution and the delivery of the dividend therefrom shall be effective as an act that directly causes property damage by disposing of his/her property in relation to the buyer, and as an act in lieu

Examining the reasoning of the judgment below in light of the legal principles as seen earlier, since the actual victim under the facts charged in this case is deemed the buyer of the loan of this case, the crime of fraud is established in relation to the buyer.

Nevertheless, solely on the grounds stated in its reasoning, the lower court acquitted the Defendant of the instant facts charged without examining who is the true victim, thereby adversely affecting the conclusion of the judgment by misapprehending the legal doctrine on the disposal of fraud, the identity of the facts charged and the scope of adjudication. The allegation contained in the grounds of appeal assigning this error

3. 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 Kwon Soon-il (Presiding Justice)