[1] The case where a legal evaluation of a defendant's series of acts is recognized as non-affortness of crime

[2] The case holding that the court below erred in the misapprehension of legal principles and incomplete deliberation, in case where the defendant, who borrowed money to the victim Gap and transferred his credit to Eul as collateral, collected and consumed it at will prior to the notification of the assignment of credit, and thereby found the defendant guilty of all of the fraudulent acts and embezzlement

[1] In appearance, where a series of acts of the defendant, which forms the basis of the facts charged, constitute several crimes, but the legal evaluation of such acts is made together and constitutes a single social factual relationship, and in other words, where a crime of one party is established, the other party cannot be established, and the other party's crime may not be established, and only where a crime of one party is not guilty, the other party's crime may be in an infinite relationship which can be established.

[2] In a case where the defendant collected money from the victim Gap and used it at will before notifying Eul of the transfer of the credit to the victim Eul even though the defendant transferred the credit to the victim Eul as collateral, the case holding that the judgment below which recognized all of the above series of acts of the defendant should have deliberated on these circumstances and determined that it constitutes a crime among them, on the ground that the crime of fraud and embezzlement of voluntary consumption by collecting the loan money and the credit transferred as collateral is an infinite relationship according to the circumstances such as the value of the transferred credit and the defendant's authenticity as to the transfer of credit, etc.

[1] Article 37 of the Criminal Act, Article 298(1) of the Criminal Procedure Act / [2] Articles 347(1) and 355(1) of the Criminal Act

Defendant

Defendant

Attorney Lee Jin-jin

Seoul Central District Court Decision 2010No3350 decided January 14, 2011

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined ex officio, including the grounds for appeal.

1. The external appearance is the same as a series of acts of the accused, which form the basis of the facts charged, but in the event that a series of acts constitutes a single social factual relationship by combining them, the relationship that is not constituted only one legal evaluation of them, i.e., where a crime is constituted, the other party’s crime cannot be established, and only where a crime of one party is acquitted, the other party’s crime may be in an infinite relationship that can be constituted.

2. According to the records, the facts charged in this case include the false statement that the defendant would make payment even though he has no ability to repay on February 12, 2009, the fraud that the defendant acquired 26,100,000 won from the victim (crime inundation Nos. 2) and the above facts charged in this case including the fraud of embezzlement of 26,10,000 won from the victim on February 12, 2009, which was executed by the defendant on February 12, 2009. The court below found the defendant guilty as to embezzlement and embezzlement of 56,30,000 won, which is equivalent to the above borrowed amount of 56,300,000 won in gallonian department store located in Gangnam-gu Seoul Metropolitan Government, where the defendant was decided to execute as a security.

3. However, we cannot agree with the above determination by the court below for the following reasons.

A. According to the evidence duly adopted and examined by the court below, the defendant, at the time of borrowing KRW 26,100,000 on February 12, 2009, the defendant prepared a claim transfer contract with the content that he transfers KRW 30,000,000,000, out of the above gallonian department of ○○○○○○ store to the victim as collateral, but did not notify the contractor of the transfer of the claim. The above claim for the construction cost is likely to receive the construction cost if the construction is completed in light of the status of the contractor and the nature of the construction. The above claim for the construction cost appears to be a claim with a high possibility of receiving the construction cost when the construction is completed. In fact, the defendant completed the above galian department work and used the bill discounted at a discount of KRW 56,30,00 for the payment of the construction cost from the contractor at the end of March 209.

B. We examine the above circumstances in light of the legal principles as seen earlier.

First, even if the defendant was in the situation where he was liable for considerable debts to the victim and other creditors at the time of borrowing on February 12, 2009, if the claim for the construction price offered as a security for the loan amount corresponds to the borrowed amount and there was no problem in collection, and if the defendant's authenticity is recognized as to the transfer of the claim for the construction price, it is difficult to recognize the defendant's criminal intent to acquire the above borrowed amount, and it is difficult to hold the defendant liable for fraud. However, the defendant is liable for embezzlement against the act of arbitrarily consuming the collected claim in the position of the transferor of the above contract price claim.

On the other hand, in order to borrow money from the victim, the defendant has only the form of transferring the above claim for the construction price as a collateral for the borrowed money as required by the victim, and in case where the defendant collected and deducteded the above claim for the construction price from the beginning, fraud regarding the defraudation of borrowed money is established, but it is reasonable to view that the act of receiving the above claim for the construction price after transferring the above claim for the construction price and receiving it for voluntary consumption is included in the act of fraud to collect the claim for the transfer provided as security after borrowing money and to deduct it from it, it is not established separate from fraud.

As a result, the point of acquiring the borrowed money of 26,100,000 won on February 12, 2009 and the point of embezzlement of voluntary consumption by collecting the claim transferred as security at the time of the above loan is an infinite relationship according to the circumstances such as the value of the transferred claim, the defendant's authenticity of the assignment of claim, etc.

C. Therefore, the lower court should have deliberated on the circumstances such as the value of the transferred claim and the Defendant’s authenticity regarding the assignment of the claim, etc., and determine whether a series of voluntary consumption by collecting the claim from the victim and taking out the claim against a third party, and then constitutes a crime of fraud and embezzlement.

Nevertheless, without examining the above circumstances, the lower court found the Defendant guilty of all of the facts of the fraud of KRW 26,100,000 as of February 12, 2009 and the fact of the embezzlement of voluntary consumption by collecting the claims transferred as security at the time of the above loan. In so doing, the lower court erred by misapprehending the legal principles on non-affordity in the facts charged, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

4. Therefore, among the judgment of the court below on February 12, 2009, the fraud of the borrowed money amount of KRW 26,100,000 (the judgment of the court below [the list of crimes] Nos. 2) and the embezzlement of the collected money should be reversed. This is in the concurrent relationship between the remaining criminal facts and the former part of Article 37 of the Criminal Act, and one sentence should be imposed on the defendant. Therefore, the judgment of the court below is reversed in its entirety, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent

Justices Shin Young-chul (Presiding Justice)