[1] Whether cancelling a null and void provisional registration constitutes a disposal act of property in fraud (affirmative)

[2] The case holding that a crime of fraud is established if a person who has the right to claim cancellation after making a null and void provisional registration was made to cancel it by means of deception

[1] Article 347 of the Criminal Code / [2] Article 347 of the Criminal Code

[1] Supreme Court Decision 99Do1326 delivered on July 9, 199 (Gong1999Ha, 1681) Supreme Court Decision 2000Do4419 delivered on November 22, 2002 (Gong2003Sang, 262)

Defendant

Defendant

Attorney Kim Jong-young

Suwon District Court Decision 2007No2825 decided Oct. 25, 2007

The appeal is dismissed. 70 days out of detention days after the appeal shall be included in the original sentence.

We examine the Defendant’s grounds of appeal.

1. On the third ground for appeal

In full view of the facts admitted by the court below based on its adopted evidence, although the victim did not intend to transfer the ownership of the farmland of this case at the time of the victim's request even if the victim had first cancelled the provisional registration of this case, the defendant requested the cancellation of the provisional registration of this case at any time as if the ownership of the farmland of this case was transferred, and its affiliation can be recognized as having been cancelled the provisional registration of this case. The court below's finding the defendant guilty of fraud due to the cancellation of the provisional registration of this case among the facts charged is just and it is not erroneous in the rules of evidence as otherwise alleged in the ground of appeal.

2. On the first and second grounds for appeal

Fraud is established by deceiving another person, omitting a mistake, inducing the act of disposal, and thereby acquiring property or financial benefits. Here, "dispositive act" means an act of disposal of property (see Supreme Court Decision 2000Do4419, Nov. 22, 2002, etc.). If a person who has completed a provisional registration of preservation of the right to claim ownership transfer on real estate cancels the provisional registration, the owner of the real estate gains profits from holding the real estate with no burden of provisional registration. Thus, cancellation of the provisional registration also constitutes an act of disposal of property in fraud. Even if it is clearly stated that the provisional registration is null and void because there is no right to claim ownership transfer which was to be preserved on the provisional registration thereafter, even if the above provisional registration is recognized, if the defendant has a right to seek cancellation of the provisional registration in the name of the victim, and if the act of deception cannot be accepted as a means of exercising the right to claim cancellation of the provisional registration in the name of the victim, the above act of the defendant constitutes a crime of fraud.

The court below, based on its adopted evidence, found that the victim completed the provisional registration of this case in the name of the non-indicted who is his own child on October 25, 2001 to preserve the right to claim the ownership transfer registration under the title trust agreement on the farmland of this case against the defendant. The victim cancelled the provisional registration of this case at the defendant's request on December 27, 2003, the defendant sold the farmland of this case to a third party around December 2004 and completed the registration of ownership transfer after he had the third party cancel the provisional registration of this case, and as long as the defendant had the third party cancel the provisional registration of this case by deceiving the victim, even if the provisional registration of this case is null and void in violation of the law on the registration under the name of the actual right holder of real estate, the defendant acquired property profits which would possess real estate without any burden on the provisional registration. The judgment of the court below is justifiable in accordance with the above legal principles, and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal.

However, the court below erred in calculating the amount of property profits acquired by the defendant due to the cancellation of the provisional registration of this case, which is unrelated to the right to be preserved by the provisional registration of this case, and that the victim should take the total amount of loans of the Farmland Management Fund paid by the defendant for the defendant as the basis of installment repayment, etc. However, as long as the court below is clear that the cancellation of the provisional registration of this case itself is the financial profit acquired by the defendant, the error in calculating the above amount of profit does not affect the conclusion

3. On the fourth ground for appeal

In full view of the facts admitted by the court below based on the adopted evidence, the defendant was not willing to transfer the ownership of the farmland of this case to the victim, and even if the contract was already concluded with a third party with regard to part of the farmland of this case, if the victim requests the transfer of ownership of the farmland of this case at any time, it can be recognized that the victim paid 8,582,540 won to the victim for installment payments of the farmland of this case. Thus, the court below found the defendant guilty of fraud due to substitute payments for installment payments of the farmland of this case among the facts charged by the court below is just and there is no error in the misapprehension of legal principles as otherwise alleged in the ground of appeal.

4. Therefore, the appeal shall be dismissed, and a part of the number of detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yang Sung-tae (Presiding Justice)