[1] Whether an article, which is not one's own, may be the object of the crime of obstruction of another's exercise of rights (negative)

[2] In a case where the Defendant was prosecuted for interfering with the Defendant’s exercise of the right of retention by purchasing a building Gap corporation’s own child under the right of retention under a compulsory auction by purchasing the building Gap corporation’s own child under the right of retention under its own name through a compulsory auction, changing the locking device, and neglecting possession, the case holding that the lower court erred by misapprehending the legal principles as to “self-owned goods” by obstructing the exercise of the right of retention, on the grounds that, in a real estate auction procedure, where a person who intends to purchase real estate in another person’s name under a title trust agreement with another person has paid the purchase price in full at his own expense after obtaining a decision to permit sale under the name of another person, regardless of whether he would bear the purchase price, and thus,

[1] Article 323 of the Criminal Code / [2] Article 323 of the Criminal Code, Article 325 of the Criminal Procedure Act

[1] Supreme Court Decision 2009Do5064 Decided February 25, 2010 (Gong2010Sang, 694) Supreme Court Decision 2017Do4578 Decided May 30, 2017 (Gong2017Ha, 1433)

Defendant

Defendant

Law Firm Rate, Attorneys Jeon Byung-soo et al.

Seoul Central District Court Decision 2018No3864 Decided September 27, 2019

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

1. Ex officio determination

The judgment on the grounds of appeal shall be made ex officio.

A. Obstruction of a right under Article 323 of the Criminal Act is established by obstructing another person’s exercise of right by taking, concealing, or destroying his/her own property which is the object of another person’s possession or right. Thus, if an article which was taken, concealed, or destroyed is not one’s own property, interference with exercise of right cannot be established (see Supreme Court Decision 2017Do4578, May 30, 2017, etc.).

B. On July 12, 2017, the lower court affirmed the first instance judgment convicting the Defendant of this part of the charges on this part of the charges that: (a) around 06:00 on September 5, 2017, the Defendant purchased the instant building 501 under the name of Nonindicted Party 1, who was an son through a compulsory auction; and (b) on September 5, 2017, by changing the key repair shop to a lock locker under the above building 501; and (c) deprived the victim Nonindicted Party 2 of possession of the building 501, thereby hindering the victim Nonindicted Party 2’s exercise of the lien

C. However, even according to the facts charged in this part, the Defendant purchased the building 501 of this case through a compulsory auction under the name of Nonindicted Party 1, who is an son, and when a person who intends to purchase real estate in the real estate auction procedure obtains a decision to permit sale under his name under a title trust agreement with another person and pays the purchase price in full at his own expense, the ownership of the real estate for auction purpose is acquired by the title holder regardless of the burden of the purchase price (see, e.g., Supreme Court Decision 2006Da73102, Sept. 10, 2009). Thus, even if the Defendant deprived of the possession of Nonindicted Party 2 corporation as to the above building 501, it cannot be deemed that the

D. Nevertheless, the lower court found the Defendant guilty of this part of the facts charged on the ground that the act of denying possession of the above building 501 constitutes the crime of obstructing the exercise of rights. In so determining, the lower court erred by misapprehending the legal doctrine on “self-goods” in the crime of obstructing the exercise of rights, thereby adversely affecting the conclusion of the judgment.

2. Scope of reversal

Meanwhile, the lower court rendered a single sentence against the Defendant on the ground that this part of the facts charged and the remaining facts charged are concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, the lower court’s judgment is bound

3. Conclusion

Therefore, without further proceeding to decide on the grounds of appeal, the lower judgment is reversed ex officio, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Jae-chul (Presiding Justice)