(영문) 대전지방법원 2017. 3. 16. 선고 2016노2358 판결

1) At the time, the Defendant did not have the intention or ability to pay the construction cost to the victim Nonindicted Co. 2 Co., Ltd. (hereinafter “Nonindicted Co. 2”) in relation to the fraud [the crime of fraud 2014 high-class 1421-1 (Separation)]. Thus, the Defendant did not have the intention to defraud.

2) In relation to the crime of occupational embezzlement (the first instance court 2015Kadan235), the Defendant paid the settlement of the amount of the victim’s investment to Nonindicted 3, a partner, to the victim Nonindicted 3. Thus, it cannot be deemed that the Defendant was in the status of keeping another’s property.

3) In relation to the crime of obstructing another’s exercise of rights (the first instance judgment 2015Kadan1007), the lower judgment determined that the Defendant committed the crime in collusion with Nonindicted 1 (the Nonindicted 1) who is the owner of the vehicle as indicated in the judgment, but the judgment of innocence became final and conclusive as to Nonindicted 1, an accomplice, and thus, the Defendant, who is not the owner of the said vehicle, may not be the subject of

B. Unreasonable sentencing

The punishment of the court below (one year and two months of imprisonment) is too unreasonable.

2. Determination

A. As to the assertion relating to the fraud [the crime of fraud 2014 Highest 1421-1 (Separation]

1) In full view of the following facts and circumstances acknowledged by the evidence duly admitted and investigated by the lower court, the lower court may fully recognize the fact that the Defendant acquired pecuniary benefits equivalent to the amount of the construction cost by allowing the victim Nonindicted Company 2 to do construction work, such as the criminal facts found guilty at the lower court.

① The Defendant denied the facts charged in the instant case in the lower court’s trial court, and recognized all the facts charged of the instant case including the criminal intent of defraudation at the seventh trial date of the lower court. As can be seen, the Defendant’s confession statement recognizing his criminal act by obtaining the assistance of counsel in the court cannot be easily rejected unless there is an explanation by which he can obtain the aforementioned confession.

② On September 2012, the Korea Rural Community Corporation awarded a contract to Nonindicted Co. 4 (hereinafter “Nonindicted Co. 4”) for the civil engineering works for the water quality improvement project for agricultural water in the passenger loan 2 zone (hereinafter “FL2 zone construction”). Nonindicted Co. 4, among the above civil engineering works, subcontracted the construction work price of KRW 288,970,00 to the Defendant’s “Nonindicted Co. 6 Co., Ltd.” (hereinafter “Nonindicted Co. 6”), and around September 20, 2012, the Defendant again subcontracted the construction work price of KRW 288,970,00 to the victim’s non-indicted Co. 4 (hereinafter “the instant construction work”). Nonindicted Co. 4, supra, the construction period of the said construction work to the victim’s non-indicted Co. 2, Ltd. from September 10, 2010 to April 30, 2013 (hereinafter “the instant construction work”).

③ The Defendant received directly a subcontract price of KRW 160,00,000 in relation to the project of the Korea Rural Community Corporation and the Passenger Zone Two District, which is KRW 47,30,000 on April 15, 2013, and KRW 53,90,000 on June 7, 2013, and KRW 53,90,000 on September 16, 2013, and KRW 261,20,00 in total.

④ On October 10, 2013, the Defendant provided that Nonindicted Co. 2’s employees of Nonindicted Co. 2 were “to start construction work according to the instant contract for construction work concluded on September 2012, and to complete the construction work,” and that Nonindicted Co. 2 started the said construction work around that time. However, at the time, the Defendant had the duty to notify Nonindicted Co. 4 of the payment of the subcontract price of KRW 261,200,00 (in particular, the aforementioned payment was included in KRW 160,00,000, which was 160,000 on April 15, 2013, including the fair payment amount of the instant construction work, and the balance of the subcontract price was 27,770,000,000 won, which was not paid by the Korea Rural Community Corporation, which was the primary business entity, or 20,000,000 won, which was not paid by the Defendant to Nonindicted Co. 2, Ltd., the Defendant or the Defendant’s public corporation.

⑤ On November 2013, the Defendant refers to the victim Nonindicted Co. 2, 2013, who confirmed whether the payment of the construction cost is possible, to the victim Nonindicted Co. 2: (a) again “after the completion of construction; (b) Nonindicted Co. 6, other than the passenger loan 2 district construction; and (c) Nonindicted Co. 6, in addition to the passenger loan 2 district construction project, subcontracted by the Korea Rural Community Corporation and Nonindicted Co. 8 (hereinafter “Nonindicted Co. 8”) in sequence and subcontracted by the Korea Rural Community Corporation (hereinafter “Nonindicted Co. 8”) around March 25, 2013; and (d) Nonindicted Co. 6 did not notify the circumstances as set forth in the said paragraph.

6) Comprehensively taking account of the following circumstances, the Defendant’s defense that Nonindicted Company 6 operated by the Defendant had the ability and intent to repay the instant construction cost to Nonindicted Company 2, as the claim for the construction cost regarding the passenger loan 1 district construction around November 2013, cannot be accepted.

Until September 30, 2013, Nonindicted Co. 6 appears to have already received KRW 126,978,500 out of KRW 348,590,000 from Nonindicted Co. 8, the amount of the construction payment claim of the 348,590,00.

The creditor of Non-Indicted 6 Co. 9 of the Republic of Korea (hereinafter “Non-Indicted 6 Co. 9”) was subject to seizure and collection order on August 6, 2013, stating that “The non-Indicted 6 Co. 9 shall pay KRW 61 million and its delay damages to Non-Indicted 9.” On November 19, 2013, Non-Indicted 6 was subject to seizure and collection order on KRW 31,031,045, and KRW 31,031,045, and KRW 31,031,045, and KRW 31,031,045, out of the construction payment claims related to Non-Indicted 6 Co. 4 of the instant construction work, Non-Indicted 6 Co. 6’s claims related to Non-Indicted 6’s construction work in the Daejeon District Court (Seoul District Court Branch 2013Ta3953), and the seizure and collection order on KRW 216,2013 and KRW 2527.

B. On September 24, 2012, Nonindicted Co. 6 borrowed KRW 78,00,000 from Nonindicted Co. 10 on June 13, 2012, at the interest rate of KRW 24% per annum, and on October 10, 2013, the due date was due, and drafted a notarial deed that recognizes compulsory execution in the event of nonperformance. Nonindicted Co. 10 seized KRW 100,00 among the claim for construction price of Nonindicted Co. 6’s passenger loan 1 district, after the due date, and around that time, Nonindicted Co. 10 seized Nonindicted Co. 6’s dump truck’s 15,00,00 among the claim for construction price of Nonindicted Co. 6’s passenger loan 1 district.

㉣ 공소외 11 주식회사는 2014. 1. 2. 청구금액을 326,000,000원으로 하여 공소외 6 회사의 공소외 8 회사에 대한 승언1지구 공사에 관한 공사대금채권 중 위 금액에 대하여 채권압류 및 전부명령을 받았다.

The Defendant testified to the effect that, in a lawsuit filed by a third party against Nonindicted Company 9, who is the person having the above seizure and collection right, the Defendant was present as a witness in the lawsuit (Seoul District Court Decision 2014Da5205, Seosan Branch Court Decision 2014Da5205, Nov. 201, 2013, the creditors of Nonindicted Company 6 enforced compulsory execution against the company’s property, and the Defendant prepared a false “documents related to termination of construction contract” prepared by Nonindicted Company 8 retroactively to “ September 30, 2013,” in order to preserve the right to subcontract construction cost regarding Nonindicted Company 8’s property, the date between Nonindicted Company 8 and Nonindicted Company 8 was “the documents related to the termination of construction contract”. The Defendant’s testimony itself was based on the foregoing paragraph (5) that the Defendant urged the victim Nonindicted Company 2 to perform the instant construction work, and thus, it should be attached to the creditors’ remaining subcontractor’s property including the remaining subcontract price amount: KRW 221,611,5000,500.

7) In addition, the Defendant changed to the effect that “In addition to the instant construction work in relation to the passenger loan 2 district construction work, the Defendant had the ability and intent to pay the victim Nonindicted Co. 2 for the claim for construction cost to be paid by Nonindicted Co. 4, and thus, Nonindicted Co. 4 did not receive it directly from the employees, equipment, and equipment of the relevant construction work.” However, even according to the Defendant’s statement, “the amount to be paid 78 million won from Nonindicted Co. 4 was expected to be paid as the wages of the relevant construction work and the equipment cost by the equipment business operator,” and thus, the Defendant’s assertion that the victim Nonindicted Co. 2 had the ability and intent to pay for the said construction work cannot be accepted.

8) The Defendant did not reimburse the victim non-indicted 2 Company 143,00,000 won of the instant construction price claim until now.

2) Therefore, there is no reason to believe that this part of the defendant's assertion of mistake is erroneous.

B. As to the assertion regarding the crime of occupational embezzlement (the first instance court 2015 order235)

1) Comprehensively taking account of the following facts and circumstances acknowledged by the lower court and the evidence duly admitted and investigated by this court, the Defendant’s custody of KRW 45 million, a partner of the victim Nonindicted 3, in the course of business, and the fact of embezzlement can be fully acknowledged.

① The Defendant admitted not only the investigation agency but also the court below’s decision as to this part of the facts charged. Nevertheless, the court below denied the reversal, and there is no reason to understand the background of the reversal.

② According to the business partnership agreement between the Defendant and Nonindicted 3 on November 20, 2011, the Defendant and the victim Nonindicted 3 jointly distribute profits by inserting material costs, labor costs, and expenses necessary for the business (water quality improvement in the area 2 zone 3) (where the said contract was actually concluded, it is deemed that the date of preparation of the said contract was retroactively stated). The Defendant and the victim included material costs, labor costs, and expenses necessary for the business (hereinafter referred to as “water quality improvement in the area 2 zone 4”) and jointly distribute profits by settling accounts from the progress payment each time. Paragraph (2) of this Article mutually approves the documents settled on the settlement of accounts (Paragraph (3). The payment of material costs, labor costs, and expenses are also conducted through prior consultation (Paragraph (4)).

③ On March 14, 2012, the Defendant received KRW 171,00,000 from Nonindicted Company 4 for the second half of the subcontract price in relation to the construction project in the 2nd area, and paid KRW 71,00,000 from Nonindicted Company 3 on the same day, and paid KRW 45,000,000 for the personal debt against Nonindicted Company 12 on the same day. On the same day, the Defendant repaid KRW 45,00,000 for the second half payment.

④ As above, the Defendant paid the victim non-indicted 3 a full amount of KRW 71,00,00 among the second progress payments, and thereby, asserts that the Defendant is not a person who keeps another's property. However, the above victim's existing investment amount (the victim claimed KRW 60,000,00, but the defendant claimed KRW 51,1690,000) is more than the victim's existing investment amount (the victim claimed that KRW 5,1690,00 is 5,00). However, the above fact that the Defendant paid the victim's previous investment amount of KRW 71,00,000,000 to the victim's non-indicted 3 in accordance with the above business agreement is as follows: (a) the Defendant and the victim have settled the above second progress payments, labor costs, and expenses, or the Defendant has received KRW 45,00,000 from the victim to the Corporation as repayment of personal debt; and (b) there is no evidence to acknowledge that the Defendant had obtained the victim's consent or agreed with the victim.

2) Therefore, there is no reason for the Defendant’s assertion on this part.

C. As to the assertion on the crime of obstruction of another’s exercise of rights (the first instance judgment 2015Kadan1007)

1) Since the crime of interference with exercise of rights under Article 323 of the Criminal Act is established by obstructing another person’s exercise of rights by taking, concealing, or destroying one’s own property which is the object of another person’s possession or right, the crime of interference with exercise of rights may not be established if the taken, concealed, or destroyed property is not one’s own property (see Supreme Court Decision 2000Do5767, May 30, 2003).

2) According to the court below and the evidence duly adopted and examined by this court, the automobile (vehicle number omitted) as indicated in this part of the facts charged was registered in the name of Nonindicted Party 1, and Nonindicted Party 1 was indicted jointly with the Defendant on December 14, 2015 as a co-principal of the obstruction of the exercise of the exercise of the exercise of the right in this case, and appealed after being sentenced to a fine of KRW 2 million upon being found guilty upon being sentenced to a separate judgment at the court below on December 14, 2015. The crime of obstruction of the exercise of the right in this case committed voluntarily by the Defendant without Nonindicted Party 1’s consent, and was pronounced not guilty on the ground that there is insufficient evidence to prove that Nonindicted Party 1 conspired with it (Seoul Daejeon District Court Decision 2016No42, Aug. 25, 2016). The prosecutor’s appeal against this is dismissed (Supreme Court Decision 2016Do14628, Nov. 10, 2016).

3) As seen above, the Defendant, who is not the owner of the instant vehicle, can be the co-offender of Nonindicted 1’s crime of obstruction of another’s exercise of rights pursuant to the main sentence of Article 33 of the Criminal Act. As long as Nonindicted 1 was acquitted, the Defendant alone cannot be the subject of obstruction of another’s exercise of rights, and there is no evidence to acknowledge that the Defendant is the owner of the instant vehicle. However, the lower court recognized the Defendant as the co-principal of the crime of obstruction of another’s exercise of rights. Accordingly, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion

3. Conclusion

Therefore, the judgment of the court below that rendered a single punishment by treating the above facts as concurrent crimes under the former part of Article 37 of the Criminal Act and the remaining crimes as concurrent crimes under Article 37 of the Criminal Act shall be reversed in its entirety. Thus, the judgment of the court below shall be reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and the judgment below shall be reversed in accordance with the above Article 364(2)

Criminal facts and summary of evidence

The summary of the facts constituting an offense recognized by this Court and the evidence thereof is as follows: (a) the term “ around March 16, 2016” in Section II (II) of the facts constituting an offense is revised as “ around March 14, 2016”; and (b) the term “1. In addition to deletion of a letter of peremptory notice on the exercise of mortgage rights (i.e., an application for an erroneous or misleading statement, an agreement on an erroneous or misleading portion, the details of receipt of principal and interest, etc.)” in the summary of the evidence, and (c) deletion of a letter of peremptory notice on the exercise of mortgage rights (i.e., the same as the corresponding

Application of Statutes

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

Article 347(1) of the Criminal Act (Fraud) Article 347(1) of the Criminal Act, Articles 356 and 355(1) of the Criminal Act (the point of occupational embezzlement), the choice of imprisonment, respectively.

1. Aggravation for concurrent crimes;

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

Reasons for sentencing

The amount of damage to the crime of fraud of this case reaches KRW 143 million, and the defendant did not agree with the victim or pay the victim the amount of damage, and did not reach an agreement with the victim of the crime of occupational embezzlement of this case. The defendant reversed the confession at the court below and denied the crime at the court below, and the defendant does not seem to be contradictory to it.

However, in the case of the crime of occupational embezzlement, the defendant paid the victim more money than his previous investment money prior to the crime, and the defendant has no record of punishment heavier than his fine for the last ten years. Such circumstances, the defendant's age, character and conduct, the process and consequence of the crime, the circumstances after the crime, etc. are considered, and the punishment is determined as ordered.

The acquittal portion

1. Of the facts charged in the instant case, the gist of obstructing another’s exercise of rights is as follows.

A de facto marital relationship with Nonindicted Party 1. On October 2, 2012, the Defendant: (a) purchased a car in the name of Nonindicted Party 1 at the “△△△△△△ Agency for On-site Motor Vehicles” located in the Asia-si ( Address 2 omitted); (b) borrowed KRW 63.5 million from Nonindicted Company 13, the victimized Company; and (c) on October 25, 2012, the Defendant established a right to collateral security of KRW 44.5 million with Nonindicted Party 1 as the mortgagee for the said car; (d) the Defendant in collusion with Nonindicted Party 1 on October 2, 2014, transferred the said car, which is the object of the right of the victimized Company, to Nonindicted Party 14, 18 million won, and then the victimized Company could not find the said car by offering it as a collateral; and (e) the Defendant in collusion with Nonindicted Party 1 and the Defendant interfered with the exercise of another’s right.

2. This part constitutes a case where there is no proof of crime as stated in the above paragraph 2-C, and thus, it is so decided as per Disposition with the decision of not guilty under the latter part of Article 325 of the Criminal Procedure Act.

Judges Kim Yang-hee (Presiding Justice)

Note 1) Criminal facts II as indicated in the lower judgment, but they are stated as “ March 16, 2012.” However, on March 14, 2012, it is right and reasonable (No. 146 of the Investigation Records).

심급 사건

-대전지방법원 천안지원 2016.8.18.선고 2014고단1421-1(분리), 2015고단235(병합), 2015고단1007(병합)

대전지방법원 2017.3.16.선고 2016노2358

-대법원 2017.5.30.선고 2017도4578

원심판결

-대전지방법원 천안지원 2016. 8. 18. 선고 2014고단1421-1(분리), 2015고단235(병합), 2015고단1007(병합) 판결

본문참조판례

-2013. 8. 6.자 지급명령(청주지방법원 영동지원 옥천군법원 2013차203호)

-2014고단1421-1(분리)

-2015고단1007

-2015고단235

-대법원 2003. 5. 30. 선고 2000도5767 판결