2019Na25324 Delivery of corporeal movables

1. ○○;

2. Fixed △△△;

Korea

The Minister of Justice's prosecution of the representative of law

Gwangju District Court Decision 2018Gahap58276 Decided November 15, 2019

Mar. 25, 2020

April 22, 2020

1. The defendant's appeal against the plaintiff is dismissed in entirety. The defendant's appeal costs are assessed against the defendant.

1. Claims;

Defendant 1: (a) each game machine listed in attached Tables 1 and 2 to Plaintiff ○○, and (b) to Plaintiff 1 △△△.

each delivery of each game machine listed in paragraph 3 of the list.

2. Purport of appeal;

The judgment of the court of first instance is revoked. All plaintiffs' claims are dismissed.

1. The reasons why the facts based on this part of the court are presented are as stated in the pertinent column of “1. Basic facts” as stated in the judgment of the court of first instance. Therefore, they are cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Summary of the parties' arguments;

A. Each game machine listed in paragraphs 1 and 2 of the attached list No. 1 and 3 of the plaintiff 2 is the ownership of the plaintiff ○○ and the plaintiff 1 △△△△△△ (in order in the attached list No. 13 of this case hereinafter referred to as "the first game machine of this case"). However, the defendant occupies without title each game machine of this case in the attached list No. 1 of this case on the ground that each game machine of this case was confiscated in the attached list No. 1 of this case. The plaintiff 1 of this case without title. Accordingly, the plaintiff demanded the defendant 2 to deliver each game of this case.

B. Defendant 1) Even if the evidence submitted by the Plaintiff was integrated, each of the instant games owned by the Plaintiffs

(2) Although the Plaintiff recognized that the game of this case was engaged in illegal business activities using each of the game of this case, the Plaintiff constitutes an accomplice who provided the game of this case. Therefore, according to the effect of confiscation ordered by each of the instant judgments (see, e.g., Paragraph 4 below) the Defendant has the right to possess each of the game of this case (see, e.g., Paragraph 4 below). Each of the game of this case is likely to reduce work desire and cause a speculative spirit, thereby causing significant harm. In case of returning each of the game of this case, each of the game of this case is likely to repeat the same crime. Accordingly, each of the game of this case is subject to destruction, not subject to return to the Plaintiffs (see, e.g., Paragraph 5 below).

3. Determination as to the ownership relation of each game of this case

A. The first game machine of this case (whether the plaintiff is the owner or not)

In full view of the following circumstances: (a) Plaintiff ○○ purchased the instant first game machine from Ma○○○ to Ma○○○, and (b) Plaintiff 1,2,9, 13, 15, and evidence Nos. 1,4, and 5 (including various numbers, if any; hereinafter the same shall apply) as stated above; (b) purchased the instant first game machine from Ma○○; and (c) again leased the instant game machine to Ma○○○, which was known to the Ma○○○, and the instant game machine was seized to the investigation agency on the ground that it was an object provided for committing a crime. Accordingly, the owner of the instant first game machine can be recognized as Plaintiff ○○○.

1) On December 24, 2017, 100 KRW 200,00,000, KRW 1200,000 to the Plaintiff 1,000,000. The Plaintiff 00 paid KRW 3 million on December 24, 2017. Meanwhile, on December 29, 2017, KRW 60,00,00 to the Plaintiff 2,000,000,000 KRW 1,000,000,000,000,000 KRW 2,000,000,000,000 KRW 1,000,000,000,000,000 KRW 2,000,000,000,000,000,000,000,000 KRW 2,07,00,00,000.

① However, it is evident that 30 million won was paid on the day of the contract entered into in the ○○○○ Game, the seller’s instant sales contract. This assertion is consistent with the objective financial data. There is no reflect to deem that 30 million won was paid on any other name. ② On December 29, 2017, the Plaintiff’s withdrawal of KRW 12 million from the account of this ○○○○○○○○○○ (transfer of KRW 6 million to ○○○○○○○), the Plaintiff’s payment of the purchase price of the instant 1 game product to the ○○○○○○○○○○○ Office, which was naturally in line with the Plaintiff’s request for sale and purchase of the instant 1 game product. This assertion is also consistent with the Plaintiff’s statement prepared in ○○○○○ Game, which was naturally in line with the content of the instant sales contract and the instant 1st ballot ticket that was not issued with the Plaintiff’s permit for sale and purchase of the instant game product.

Comprehensively taking account of such circumstances, it is difficult to reverse the determination that the instant 1 game machine was owned by the Plaintiff ○○○ solely on the grounds that the Defendant was in secret.

B. The second game machine of this case (whether the plaintiff ○○ is the owner)

Comprehensively taking account of the above basic facts and the circumstances described in Gap evidence Nos. 3, 10, 11, 13, 14, 16, 17, and Eul evidence Nos. 2, the following circumstances, which can be acknowledged and inferred by adding to the overall purport of the pleadings, the plaintiff 00 purchased the 2 game game machine of this case from 00 YY Y Y Y Y Y Y YY Y YY YY YY YY YY YY YY YY YY YY YY YYY YY YYY YY YYY YYY YY YYY YYY YY YY

The owner of the instant game No. 2 appears to be this case’s 300,000 KRW 200,000,000 KRW 80,000,000 KRW 10,000,00 KRW 20,000,00 KRW 80,000,00 KRW 20,000,00 KRW 80,000,00 KRW 10,000,000 KRW 20,000,00 KRW 20,000,00 KRW 20,000,00 KRW 18,000,000,00 KRW 20,000,000,00 KRW 20,000,000, KRW 18,000,00,00,000, KRW 30,000,00).

In light of the above facts and 0. The 2nd 8th 1st 6th 6th 6th 6th 6th 6th 8th 6th 6th 6th 6th 6th 8th 6th 6th 6th 6th 8th 6th 6th 8th 6th 6th 8th 6th 8th 6th 6th 8th 6th 6th 6th 8th 6th 8th 6th 6th 8th 6th 8th 6th 6th 8th 6th 6th 6th 8th 6th 6th 8th 6th 6th 8th 6th 6th 6th 8th 6th 6th 6th 6th 8th 6th 6th 8th 6th 8th 200 2nd 8th 6th 8th 2012

D. Sub-committee

As long as the plaintiff is deemed to be the owner of each game of this case, the defendant is a special person.

Unless there was any circumstance, the plaintiffs are obligated to deliver each game of this case to the plaintiffs.

4. Judgment on the defendant's assertion related to the forfeiture of each game of this case

A. Relevant legal principles

Article 44(2) of the Game Industry Promotion Act provides, “The game products owned or occupied by a person falling under paragraph (1), profits generated by such criminal acts, and property derived from criminal proceeds shall be confiscated, and if confiscation is not possible, the equivalent value thereof shall be additionally collected.” This provision is a special provision on confiscation prescribed by the general provisions of the Criminal Act. It is interpreted that confiscation of game products to be confiscated shall be necessary, regardless of the good faith or bad faith, even if it falls under the ownership of a third party other than this defendant. However, under the criminal law, confiscation is imposed in addition to another sentence in the judgment of conviction against the defendant who is judged guilty of the facts charged. In light of this point, the effect of the judgment that sentenced confiscation of the goods owned or occupied by a third party other than the defendant is prohibited in principle from possessing those goods in relation to the defendant who was convicted of the facts causing confiscation. It does not affect the ownership of a third party’s judgment (see, e.g., Supreme Court Decision 200Da41390, Apr. 1, 2005).

B. Determination

In each of the instant judgments, the facts that the confiscation of each of the instant games was sentenced are as shown in the facts on the basis of the foregoing facts. However, as seen in the legal principles stated in (a) above, the effect of the said confiscation decision extends only to △△, which was the Defendant. It cannot be deemed that the Plaintiffs, who did not have been tried as a criminal accused case, such as the above, have an effect on the Plaintiffs.

Therefore, the plaintiffs can seek the delivery of each game of this case, based on their ownership. The effect of the confiscation judgment is based on the defendant's right to possess each game of this case.

C. The assertion of the Defendant in this Court and the determination thereof

In this regard, the Defendant asserts to the following purport in this Court: “The Plaintiffs recognized that the use of each game of this case on Y Kim Jong-sung, the Plaintiff, would engage in illegal money exchange.In that sense, the Plaintiffs provided the game of this case to Ansan and Kim Jong-tae, thereby facilitating the commission of the crime. Accordingly, the Plaintiffs, who are in the position of accomplice, should be excluded from the claim for delivery of this case.

First of all, in light of the fact that the lease term of each of the instant games is considerably short and that the rent is already paid in advance at the time of the contract, etc., it is doubtful whether the Plaintiff was not aware of the illegal operation of the △△ Kim Jong-dong, which the Plaintiff knew.

However, in addition to the case of illegal business, it is difficult to immediately see the plaintiffs' awareness of illegal business solely on the basis of the fact that a contract in the form of sub-loan can be concluded according to various motives.

Defendant 1 committed the same kind of crime or committed the same crime again after the control, and each game machine of this case is premised on money exchange business due to the characteristics of each game machine of this case, there is a phrase that is scheduled to seize an investigative agency in the lease contract, Plaintiff 00 leased a game machine to many illegal money exchange operators, the plaintiffs jointly leased the game machine to the plaintiffs, and it is not known to each other, such as linking the instant institution, etc. However, as the defendants are recognized, the plaintiffs were not examined and examined through the investigation process with the insurance company and Kim Jong-dong or a separate criminal justice procedure with the game of this case. The game of this case itself constitutes the game products subject to the daily classification of each game of this case.

원고 들이 이 사건 각게임기의 임대당시 서로 아는 사이였는지 여부를 알 수 있는 증거도 없다. 임대차 계약서에 '임차인의 불법 영업으로 수사기관에 물품이 압수되는 경우 임대인 에게 물품 대금을 배상한다'는 취지의 약정이 있다고 하여, 임차인이 불법 영업 을 할 것임을 원고 들이미리 용인(容 認)·감수(甘受)했다고 볼 수도 없다. 그렇다면 피고의 주장 과 같은 정황만으로, 원고들이 환전 영업 범행에 관한 공범이었다고 인정하는 데에는 신중 을 기 하지 않을 수 없다. 아울러 피고가 내세우는 대법원 1995.3.3.선고 194 다 37097 판결 은 , 몰수물의 소유자가 공동 피의자로 입건되고서도 조사에 응하지 않아 기소 중지 처분 이이루어짐으로써 그 피의사건이 완결되지 않은 경우에 관한 것이다. 따라서 원고 들이입건조차 되지 않은 이 사건과 는 그 사안을 달리 한다.

5. Determination on the assertion that each game machine of this case is subject to destruction

A. Relevant statutes

3. Game products produced or distributed for profit by a person who has not registered pursuant to Article 25;

B. Determination

The game itself of this case constitutes a product subject to a decision on the rating of game products by the Game Industry Management Committee. Therefore, it cannot be viewed as a product subject to be discarded pursuant to the relevant provisions of the Criminal Procedure Act, the Office Rules for Seized Articles by Prosecution, and the Game Industry Promotion Act.

6. Conclusion

As seen above, the defendant is obligated to deliver each game of this case to the plaintiffs who are owners of each game of this case. The defendant has the right to possess each of the game of this case, or each of the game of this case, which is the purport that each of the game of this case is subject to destruction, can not be accepted.

Therefore, the claim of the plaintiff in this case must be accepted. The judgment of the court of first instance is just as it concludes. Ultimately, the defendant's appeal against the plaintiff cannot be accepted, and all of the appeals are dismissed.

Judges Lee Hun-hoon

Judge Maximum Wol-man

Judges Kim Jong-ju

1) Three recommendations issued to Ansan/Seoul, as seen in the underlying facts of the first instance judgment cited by this Court,

means a judgment of conviction.

2) Although it is not contained in the Defendant’s statement of reasons for appeal, it is not before the Defendant’s reply, etc. submitted during the period of the first instance trial.

It is an outlined argument.

3) Of the instant games No. 2, for the Sfin-fin-fin-fin-fin-fin-fin-fin-fin-fin-fin-fin-fin-fin-fishers

It is difficult, however, to understand the specific terms and conditions of the agreement in addition to the entry of the item in hand.

Of the 2 game machines, it seems that a rental of 40 pinlers and 40 pinlers and a lease of 40 pinlers is made.

objective financial data containing the withdrawal of a total of 4.3 million won on January 31, 2018 (A)

17 In light of the fact that heading evidence is submitted as evidence, the law relating to the trade and lease of Sfinus 40 pinus

It is difficult to conclude that rate action or performance of the contract is false.

A person shall be appointed.