Defendant

Both parties

Pursuant to the principle of good faith (prosecution), Kim Dong-dong (public trial)

Attorney Bocheon-gu et al.

Cheongju District Court Decision 2012Ma39 decided November 22, 2012

All appeals filed by the defendant and prosecutor are dismissed.

1. Judgment on the appeal by the defendant

Even if the Defendant was served with the notification of the receipt of the notification of the receipt of the trial records on December 29, 2012, the fact that the Defendant did not submit the statement of the grounds for appeal within 20 days from the notification is apparent in the record, and the petition of appeal does not contain any indication of the grounds for appeal, and it cannot be found

2. Judgment on the prosecutor's appeal

A. Summary of grounds for appeal

(1) misunderstanding of facts

According to the relevant evidence, the fact that the defendant purchased and acquired the instant vehicle is sufficiently recognized as stated in the facts charged.

2) Legal principles

Even if the Defendant received the instant vehicle as collateral, rather than purchasing the instant vehicle, it should be deemed that the “acquisition” under Article 12(1) of the Automobile Management Act constitutes a case where a person acquires de facto control by lending money as the Defendant and operating an automobile that was transferred as collateral.

B. Determination

1) Judgment on the assertion of mistake of facts

The burden of proof for the facts constituting an offense prosecuted in a criminal trial is to be borne by a public prosecutor, and the conviction is to be based on evidence with probative value, which makes the judge feel true beyond a reasonable doubt. Therefore, if there is no such evidence, even if there is suspicion of guilt against the defendant, it shall be determined with the benefit of the defendant (see, e.g., Supreme Court Decision 2009Do1151, Jul. 22, 2010).

In this case, there is room for doubt as to whether the defendant did not acquire the vehicle of this case with the intention of ownership in light of the circumstance that the defendant contributed the prescribed amount of money (9 million won) to the defendant and used the vehicle of this case after delivery of the vehicle of this case and the fact that the defendant is in front of the automobile sales company, not the non-indicted 1 claiming that the defendant is the other party to the transfer security contract for the vehicle of this case. However, the defendant's statement that corresponds to paragraph (1) of the facts charged to the purport that the defendant purchased the vehicle of this case is only the first examination protocol (17 pages of the evidence record) of the defendant prepared by the judicial police officer, and the defendant stated that he tried to temporarily operate the vehicle of this case and return it again to the non-indicted 2 (the evidence record No. 17 of this case). Since then, the defendant stated that he borrowed the vehicle of this case from the investigative agency to the trial of this case and received the vehicle of this case as a collateral for the loan of this case from the non-indicted 2.

2) Judgment on the misapprehension of legal principles

The interpretation of a penal provision shall be strict, and it is not allowed to interpret the meaning of a penal provision excessively or analogically in the direction unfavorable to the defendant because it is against the principle of no punishment without the law that requires the provision of a crime and a punishment by law in order to protect the freedom and rights of individuals from the arbitrary exercise of the state penal authority (see Supreme Court Decision 2003Do6535, Feb. 27, 2004, etc.).

In this case, the matters on the registration of ownership of a motor vehicle are stipulated by the Automobile Management Act, while the matters on the registration of ownership of a motor vehicle are distinguishable from the cases of acquisition by intention of ownership of a motor vehicle and acquisition by intention of collateral security for a specific movable property such as a motor vehicle. Article 9 of the Act on Mortgage on Specific Movables such as Motor Vehicles provides that a motor vehicle shall not be the object of a pledge right, but there is no provision regarding the validity of a juristic act in violation or its punishment. If the concept of acquisition by transfer under Article 12(1) of the Automobile Management Act includes a transfer for mortgage security, it goes against the legal language and substance relationship, and it is contrary to the conclusion that a person who is not an owner of a motor vehicle should make a registration of ownership transfer in the future of a secured party, and it seems that the acquisition of ownership by transfer is nothing more than an element to consider in judging whether to acquire ownership or acquire by transfer by law. Therefore, it cannot be viewed that the above assertion is without merit.

3. Conclusion

Therefore, the defendant's appeal shall be dismissed by decision in accordance with Articles 361-4 (1) and 361-3 (1) of the Criminal Procedure Act. However, as long as the prosecutor's appeal is ruled as above, the defendant's appeal shall also be dismissed by judgment. Since the prosecutor's appeal is groundless, it shall be dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges (Presiding Judge)