The case holding that it is against the rules of evidence that the act of the contractor's act of taking over the materials that were put into the construction site by the subcontractor from the contractor who has waived the construction work, together with the site is recognized as stolen acquisition

The case holding that it is against the rules of evidence that the act of the contractor's act of taking over the materials that were put into the construction site by the subcontractor from the contractor who has waived the construction work, together with the site is recognized as stolen acquisition

Article 362(1) of the Criminal Act; Article 308 of the Criminal Procedure Act

Defendant

Defendant

Attorney Lee Han-soo

Seoul Criminal Court Decision 88No2592 delivered on July 20, 1988

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

The grounds of appeal by the defense counsel are examined.

The criminal facts against the defendant recognized by the court of first instance, which the court below maintained, based on macroficial evidence, discontinued the construction of new underground civil engineering works of the defendant's shopping center building in Dongdaemun-gu Seoul, Dongdaemun-gu and ordered the joint defendant of the court below to pay 180 million won for the construction of new underground civil engineering works of the defendant's shopping center building in Dongdaemun-gu, Seoul, Dongdaemun-gu and ordered the joint defendant of the court below to acquire the above 40,912,200 won in total from the defendant to acquire the above 147.8 tons in 147.8 tons in stopboard, 5,242 in stopboard, 330 in s topsing 40,912,200 in s to the joint defendant, while the joint defendant of the court below kept it and received a claim from the defendant for performance of guaranteed insurance money of KRW 19,80,000 in 19,80 in 200,00 from the above defendant without permission.

According to the records, upon examining the circumstances of the construction contract and transfer between the defendant and the joint defendant of the court below, the above construction work was awarded to the joint defendant of the court below on March 15, 1985 under the condition that he will complete May 15, 1985 of the same year, but the joint defendant of the court below agreed to give a contract with the defendant, which did not give a subcontract, and thereafter, he agreed to give a lump sum subcontract to the above new defendant who was the head of the construction site of the above work, and during the construction, he continued to sell the above construction work to the defendant of the court below on June 4, 198, on the same year. On June 4, 1985, the court below concluded a loan contract for consumption of movable property with the defendant of the above construction site as security for credit payment and loan obligation, and the construction work was suspended due to delay in using it, etc., and the joint defendant of the court below did not have completed the construction work until May 15, 1985 of the agreed date.

However, if the defendant gives up entering into a contract for the construction work of this case with the joint defendant at the court below until the police later, he did not know about the fact that the new construction work was subcontracted, and such new construction work was not completed until May 15 of the same year, as agreed by the joint defendant at the court below, and the construction work was progress at the time of June 13 of the same year (65% according to the prosecutor's statement) and 150 million won (140 million won in the prosecutor's statement) in excess of the initial payment agreement and the amount of construction cost paid to the defendant, it is difficult to conclude that the new defendant acquired new materials at the court below's new construction site and that he did not know about the fact that the new defendant acquired new materials at the time of the court below's offering of the above materials to the public prosecutor and did not constitute an embezzlement of the above materials at the time of the court below's rejection, because it was contrary to the facts that he did not know that the new defendant acquired new materials at the time of the public prosecutor's disposal of the above materials.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jong-soo (Presiding Justice) Lee Chang-soo Kim Jong-won