Defendant

Prosecutor

Kim Jong-un (Court) (Court of the Republic of Korea) (Court of Justice)

Attorney Lee Young-soo

Changwon District Court Masan Branch Decision 2012MaMa29 decided May 16, 2012

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. Even if the court's voluntary auction procedure is null and void under the civil law, it shall be deemed that there is a disposal act of the court in appearance, as long as the defendant deceivings the court for filing a request for auction and receives dividends (section 1).

B. Even if the court’s act of disposal is not recognized as effective, the commission of fraud has commenced, and thus, at least the attempted crime of fraud is established (section 2).

2. Summary of the facts charged in this case

The Defendant is a person operating a non-indicted 2 corporation on the third floor of Changwon-si, Changwon-si ( Address 1 omitted). Although the Defendant did not have any loan claim of KRW 20 million to the victim non-indicted 1 (the non-indicted 1): the Defendant, on September 15, 2005, purchased dividends of KRW 20 million from the above non-indicted 1’s office in the non-indicted 3 corporation located in Changwon-si, Changwon-si, △△△△dong, the amount of KRW 4, “05,” “205,” “non-indicted 15,” “No. 10, and 101,” written the loan certificate with his seal affixed, “No. 9.15, address ( Address 2 omitted), and KRW 108,000,000,000,000 from the above non-indicted 1’s registry around September 20, 2005, omitted 1818,000.

3. The judgment of the court below

As stated in the facts charged of this case, the court below found the defendant not guilty on the ground that, even if the defendant applied for a voluntary auction upon the registration of the establishment of a neighboring mortgage, which is null and void of the cause, and the defendant was paid dividends in the distribution procedure, in the case of a voluntary auction, the effect of public confidence is not recognized, and thus the victim, the owner of the loan of this case, does not lose ownership, and the successful bidder cannot obtain ownership of the loan of this case, and the above non-indicted 1 cannot be viewed as a person who was unable to receive dividends due to the above deception even though he could not receive dividends in the case of the defendant's deception during the voluntary auction procedure. Thus, the dividend of this case does not have to be delivered to the above non-indicted 1.

4. Judgment of the court below

A. Determination as to the First Claim

(1) Relevant legal principles

(A) In a lawsuit fraud, a judgment of the court, which is the defrauded, must have the content and effect in lieu of the victim’s dispositive act. In other cases, it does not constitute fraud since it cannot be said that there was an act of giving property or acquiring pecuniary benefits by mistake (see Supreme Court Decision 87Do153, Aug. 18, 1987, etc.).

(B) If the registration of creation of a neighboring mortgage is null and void, and if the secured debt is not available, the auction procedure under the above collateral is null and void. Thus, the original owner may request the successful bidder to implement the procedure for registration of cancellation of ownership transfer due to the successful bid (see Supreme Court Decision 75Da1994 delivered on December 9, 1975).

(C) In a case where the successful bidder paid the price by auction through a compulsory auction and completed the transfer registration of ownership in the future, but thereafter, the registration of transfer of ownership in the debtor's name, which is the basis of the procedure for compulsory auction, becomes invalid and thus it becomes impossible to acquire the ownership of the auction real estate, such compulsory auction shall be deemed null and void, so the successful bidder may request the creditor of auction to return the amount he received out of the auction proceeds in accordance with the general unjust enrichment law (see Supreme Court Decision 2003Da59259 delivered on June 24, 2004).

(2) In light of the relevant legal principles, even if the Defendant received dividends in the distribution procedure by means of the voluntary auction procedure with respect to the instant case upon the registration of the establishment of a neighboring mortgage, which is null and void as to the instant facts charged, as seen in the facts charged, Nonindicted Party 1 did not lose the ownership of the instant loan, and the successful bidder is unable to acquire the ownership of the instant loan, and the dividend paid by the Defendant may be claimed for the return of unjust enrichment to the Defendant by the successful bidder who did not acquire the ownership. Therefore, it cannot be deemed that the court’s voluntary auction procedure had the content and effect in lieu of the victim’s disposal act

B. Determination as to Section 2

Even if the defendant applied for voluntary auction on the loan of this case owned by Non-Indicted 1 based on the registration of creation of a mortgage over the invalidity of cause caused by the intention to acquire dividends, as seen earlier, since the voluntary auction procedure of this case is null and void, it is impossible for the defendant to acquire the property of Non-Indicted 1 from the beginning and it cannot be viewed as an act that is objectively likely to cause a result of the defendant's act, and thus, it cannot be viewed as an impossible attempted crime of fraud (see Supreme Court Decision 2001Do669, Feb. 8, 2002).

C. Therefore, there is no error of law by misunderstanding the legal principles in the judgment below, which affected the conclusion of the judgment, and each of the above arguments by the prosecutor is without merit.

5. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since the prosecutor's appeal is without merit. It is so decided as per Disposition.

Judges Park Man-ho (Presiding Judge)