In order to establish the crime of fraud in lawsuit, whether the judgment of the court, which is the defrauded, must have the content and effect in lieu of the victim’s dispositive act (affirmative)

Article 347 of the Criminal Act

[Plaintiff-Appellant] Plaintiff 200Do1881 delivered on January 11, 2002 (Gong2002Sang, 499)

Defendant 1 and one other

Defendants

Law Firm Zin Law, Attorney Hong Hong-ran

Incheon District Court Decision 2019No1505 Decided August 9, 2019

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

1. As to the ground of appeal

In the judgment below, the defendants' assertion that there was a violation of the rules of evidence, a violation of the rules of evidence, a mistake of facts, or a misunderstanding of legal principles with respect to the victim's death in the litigation fraud is not a legitimate ground for appeal since they were asserted in the court of final appeal that there was no ground for appeal or that there was no ground for ex officio determination by the court below. However, as examined below, the part of the judgment of the court below concerning each fraud against the victim non-indicted 1 and non-indicted 2 was affected by the judgment, and thus, it is ex officio examined in accordance with Articles

2. As to the fraud against the victim Nonindicted 1 and Nonindicted 2 among the facts charged in the instant case

A. Summary of the facts charged and the judgment of the court below

Of the facts charged in the instant case, the summary of the fraud against the victim non-indicted 1 is as follows: (a) the Defendants conspired to purchase the land owned by the victim non-indicted 1, and filed a lawsuit claiming ownership transfer registration to the effect that “if the purchase price was fully paid, but the ownership transfer registration procedure was not yet implemented due to the sale due to the non-indicted 3’s failure to transfer ownership in the name of the non-indicted 1, the Defendant arbitrarily submitted the real estate sales contract and receipt in the name of the victim non-indicted 1, and submitted it as documentary evidence to the court that believed the truth, and made the court judge to render the judgment in favor of the Plaintiff, and then acquired the land owned by the victim non-indicted 1 by means of the final decision.

Of the facts charged in the instant case, the summary of the fraud against the victim non-indicted 2 is as follows: (a) the Defendants conspired to purchase the land owned by the victim non-indicted 2, as shown in attached Table 1 No. 23 of the judgment of the court of first instance; (b) the Defendants filed a lawsuit claiming ownership transfer registration to the effect that “if the purchase price was fully paid, but the ownership transfer registration procedure was not yet implemented due to the sale due to the non-indicted 4’s failure to transfer ownership in the name of the non-indicted 4; (c) voluntarily submit the real estate sales contract and receipt in the name of the victim non-indicted 2 as documentary evidence; and (d) the court believed it to be true, made the judgment to win the lawsuit by means of public notice due to the unknown whereabouts of the Defendant; and (d)

The lower court upheld the first instance judgment that found the Defendant guilty of this part of the facts charged.

B. Judgment of the Supreme Court

However, we cannot accept the above judgment of the court below for the following reasons.

1) In a lawsuit fraud, the 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, there is no act of giving property by mistake, and thus, it does not constitute fraud. Thus, if the defendant’s lawsuit was filed against the deceased person, the judgment against the deceased person shall not have the effect on his/her heir as it does not take effect (see Supreme Court Decision 2000Do1881, Jan. 11, 2002, etc.).

2) Examining the reasoning of the lower judgment in light of the evidence duly admitted, the following facts are revealed.

A) The victim Nonindicted 1 died on April 23, 2007 and co-inheritors exist. However, on June 15, 2011, the Defendants conspired with Nonindicted 3 as the Plaintiff and filed a lawsuit against the victim Nonindicted 1, who had already died, as shown in Section 3 of the List of Crimes No. 1 in the judgment of the first instance on June 15, 201, and received the judgment in favor of the Plaintiff.

B) The victim Nonindicted 2 died on July 27, 2008 and co-inheritors exist. However, on June 20, 2017, the Defendants conspired with Nonindicted 4 as the Plaintiff and filed a lawsuit against the victim Nonindicted 2, who had already died, as stated in the attached Table 1 of the crime list I in the judgment of the first instance on June 2017, and received the judgment in favor of the Plaintiff.

3) Examining in light of the legal principles as seen earlier, the Defendants conspiredd Nonindicted 3 as the Plaintiff and received the judgment by filing a lawsuit against the victim Nonindicted 1 and the judgment by having Nonindicted 4 as the Plaintiff, which was rendered against the victim Nonindicted 2, is limited to the deceased, and thus the content thereof does not take effect, and the relevant co-inheritors do not take effect. Accordingly, each of the frauds against the victim Nonindicted 1 and Nonindicted 2 among the facts charged in the instant case does not constitute a crime. Nevertheless, the lower court erred by misapprehending the legal doctrine on the establishment of a crime of fraud, thereby adversely affecting the conclusion of the judgment.

3. Scope of reversal

For the above reasons, each fraud committed against the victim non-indicted 1 and non-indicted 2 among the judgment below should be reversed. Since this part and the remaining guilty part are concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below is reversed in its entirety.

4. Conclusion

Therefore, the judgment of the court below is reversed, 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 of all participating Justices.

Justices Kim Jae-hyung (Presiding Justice)