Where a lessee who has concluded a lease contract with a lessor resides in a leased building, but only his/her wife has completed a move-in report, and subsequently transferred the name of the lessee on the lease contract to the auction court to receive dividends in the auction procedure, whether fraud is established (negative)

In a case where a lessee, who entered into a lease contract with a lessor, resides in a leased building, but only his wife, changed the name of the lessee on the lease contract to take dividends in the auction procedure after the moving-in report was completed, and made a demand for distribution to the auction court, the actual lessee has the right to receive dividends as a right to preferential payment for small-sum lease deposit even if he did not change the lessee’s name under the lease contract in the name of his wife. Therefore, even if the auction court decided to distribute dividends by mistake of the actual lessee as the wife, it is impossible to bring about the result of acquiring the property. Such act of the lessee cannot be deemed as an act objectively likely to have occurred, and thus, it must be pronounced not guilty pursuant to Article 3

Article 347 (1) of the Criminal Act; Article 325 of the Criminal Procedure Act; Article 8 of the Housing Lease Protection Act; Article 3 and Article 4 of the Enforcement Decree of the Housing Lease Protection Act;

Defendant

A co-inspector;

Gwangju District Court Decision 2001No1677 Decided November 16, 2001

The appeal is dismissed.

We examine the grounds of appeal.

According to the reasoning of the judgment below, even if the defendant was found not guilty on April 8, 1997, based on the evidence of the judgment, the court below acknowledged that the defendant was not guilty of the above part of the building of this case (hereinafter referred to as "the above building"), since it concluded a lease contract between 30 million won for the above building and 11 April 1999 with respect to the above building, but moved into the above building only as 1's wife on June 5, 1997, and the defendant's and 1's resident registration was changed to 91-6, Nam-gu, Gwangju Metropolitan City, which is the location of the restaurant operated by the defendant with 191-19, and there was no possibility that the defendant would change the ownership of the above building by 90 million won for the total amount of loans received from 230 million won for the above building on July 16, 1997, which was changed to 197.

In light of the records, the fact-finding and decision of the court below is acceptable, and there is no error in the misapprehension of legal principles as to an impossible attempted crime as otherwise alleged.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-hun (Presiding Justice)