2012No1881 Fraudulent

A

Prosecutor

The transfer date, the completion date, and the public trial;

Law Firm B

C. Attorney C.

Daegu District Court Decision 2012Gohap783 Decided June 8, 2012

November 1, 2012

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 3,000,000. If the Defendant fails to pay the above fine, the above Defendant shall be confined in a workhouse for a period calculated by converting 50,000 won into one day.

The provisional payment of the amount equivalent to the above fine shall be ordered.

1. Summary of grounds for appeal;

In full view of the evidence presented by the prosecutor, although the facts charged in this case can be fully recognized, the judgment of the court below is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.

2. Determination

A. Summary of the facts charged in this case

Around August 1, 2011, the Defendant leased and operated the said telecom from F, who was the owner of the 'Ecomel located in Gumi-si.’ The said telecom sold the said telecom to the victim G, etc. on August 1, 2011. The Defendant: (a) on August 1, 2011, the Defendant: (b) on the ground that the victim G was found to receive KRW 15 million from the holding of the telecom or the lease deposit for the said telecom; (c) on July 6, 2011, the Defendant issued a provisional attachment on the movables located in the telecom, the corporeal movables provisionally seized are assessed as KRW 15 million; and (d) on the payment of KRW 15 million for the director’s expenses, the corporeal movables will be delivered to the victim G, who was found to receive KRW 30 million from the telecom owner; and (d) on September 1, 2011, the Defendant ordered the director to hold the telecom.

After that, around August 10, 2011, the Defendant issued a false statement to the effect that the notary public pursuant to the delegation of the execution by the creditor I by the enforcement officer of the Daegu District Court Kimcheon Branch, the Defendant, on August 10, 201, under the delegation of the execution by the creditor I, sent all movable property to the Defendant on August 12, 201, on the wall 30 TV, TV, 4, air conditioners, 34, 30, 34, 30, 30, 30, 30, 30, 30, 30, 55, 300, 300, 200,000 won to the Defendant, who was affiliated with the Daegu District Court Kimcheon Branch branch, issued a false statement to the effect that the Defendant would have run a business since August 15, 201."

However, when the defendant had the corporeal movables provisionally seized by another creditor subject to seizure according to the delegation of execution by other creditors, it was thought that the defendant received the money from the victim without notifying the victim, and then did not have the intent or ability to deliver the corporeal movables within the Mour to the victim without legal problems.

As can be seen, the Defendant, by deceiving the victim as such, received money from the victim from August 12, 201 to August 15, 201, from the victim to the victim’s transfer of KRW 15 million as the transfer of corporeal movables. B. The judgment of the court below is made.

(1) On August 1, 2011, the prosecution agreed to deliver the corporeal movables provisionally seized by the Defendant to the victim in the amount of KRW 15 million, and thus, the said corporeal movables should be delivered to the victim without legal problems. However, on August 10, 201, the prosecution indicted the Defendant to the effect that he, other creditors of F, did not notify the victim of the seizure of the said corporeal movables, but instead, he/she acquired the said corporeal movables by fraud by receiving KRW 15 million more than the agreed date.

(2) On August 1, 2011, when entering into the instant agreement, the Defendant was aware of the fact that: (a) on August 1, 2011, the Defendant was aware of the fact that: (b) the Victim did not receive a refund of the lease deposit from the former owner and lessor; (c) the Defendant was aware of the fact that the Defendant’s provisional attachment of the leased corporeal movables owned in Furher’s possession was made from the Defendant; (d) on August 1, 2011, the Victim and the Defendant was aware on August 1, 201, that the Defendant transferred the leased corporeal movables owned in Furher’s possession to the Defendant without any legal problems; and (e) the Plaintiff and the Defendant were aware of the fact that the Defendant transferred the leased corporeal movables in India to the Defendant by means of the agreement to return the leased corporeal movables’s claim amounting to KRW 15 million and KRW 35 million,000,000,000,000,000,000 to the Plaintiff.

In light of these facts, at the time of August 1, 201, the Defendant had no authority to dispose of the said corporeal movables, and was merely a creditor or a provisional seizure owner of F, and the victim was also aware of such fact and was also entitled to return the lease deposit claim amounting to 15 million won, which was a claim for provisional seizure. The content of the instant agreement is reasonable to deem that the Defendant agreed not to exercise the rights of creditors and provisional seizure owners against F as well as to receive payment from the victim of the claim amount of provisional seizure claim amounting to 15 million won. It is difficult to view that the Defendant has a duty to actively block the exercise of rights to corporeal movables by social norms (only if it is interpreted that the Defendant has a duty to prevent another person from exercising his rights, this would have no choice but to view that the Defendant bears a special duty to prevent the exercise of rights by others. However, even if examining the records of this case, there is no possibility that the Defendant would always have to bear the above obligations against the victim, and thus, it is reasonable to view that there is no possibility that the Defendant would always be any possibility to block other creditors of F.

(3) Furthermore, the defendant did not notify the victim of the attachment of corporeal movables that he is the F's other creditors despite the obligation to notify the victim of the attachment, and instead, it did not find any legal grounds for the defendant to inform the victim of the compulsory execution of the former creditor. The content of the agreement of this case is as seen earlier, and it cannot be deemed that the defendant has the obligation to inform the victim of the compulsory execution of the former creditor. (The defendant becomes aware of the execution of seizure by other creditors due to the relationship in which the defendant operated within the telecom, and it can be an intentional problem to end up the execution of the agreement of this case without notifying the victim of the fact that the defendant knew of the compulsory execution by other creditors of F. Furthermore, even if the defendant knew of the fact that other creditors of F, the victim still bears the obligation to pay 30 million won to the defendant in accordance with the agreement of this case. Thus, it cannot be said that the defendant misleads the victim of the execution of the agreement of this case without notifying the victim of compulsory execution.

(4) In light of such a determination, the statements made by J’s courts and investigative agencies as seen in the facts charged of the instant case, and the statements made by G’s investigative agencies are difficult to believe, and there is no other evidence to acknowledge it.

(5) Therefore, the facts charged in this case constitute a time when there is no proof of crime, and thus, the court below rendered a judgment not guilty of the defendant under the latter part of Article 325 of the Criminal Procedure Act.

However, we cannot accept the above judgment of the court below for the following reasons.

(1) First of all, the lower court determined to the effect that in accordance with an agreement made on August 1, 2011, it is reasonable to view that the Defendant agreed not to exercise its rights as creditors and persons holding provisional seizure rights against F at the same time with payment of KRW 15 million, the amount of the claim for provisional seizure by the victim. It is difficult to deem that the Defendant is obliged to actively block the exercise of the rights by others, such as the execution of seizure of the said corporeal movables, pursuant to social norms, and that “I, other creditors of F, cannot be deemed to have the obligation to notify the victim of the seizure of corporeal movables.”

However, in light of the form and content of the facts charged, the purport of the charge seems to be that the Defendant, in light of the form and content of the deception, did not consider the issue of whether the Defendant faithfully performed the obligation under the above agreement on August 1, 201, but rather, did not notify the change of circumstances after the above agreement, thereby deceiving the Defendant by making a new agreement on August 12, 201 (see the grounds of appeal by the prosecutor).

Therefore, I would like to examine whether or not the criminal defendant's deceptive act is recognized in accordance with the purport of the above facts charged.

(2) The deception as a requirement for fraud refers to all affirmative or passive acts that have a good faith and good faith in property transaction. Of them, deception by passive acts refers to a person subject to duty of disclosure who is aware of the other party being involved in a mistake as to a certain fact and does not notify the other party of such fact. In a case where it is evident that the other party would not have been aware of such fact, in light of the empirical rule of general transactions, if it would have been evident that the other party would not have been aware of such fact, the legal obligation to notify such fact is recognized (see, e.g., Supreme Court Decision 2005Do8645, Feb. 23, 2006).

(3) Comprehensively taking account of the evidence duly adopted and examined by the court below and the court below, i.e., one victim agreed on the order of surrender, which is the lessee after the purchase of the instant telecom, after the successful bid of the instant telecom, and the Defendant was aware of the fact that the Defendant’s provisional seizure of corporeal movables owned in the said telecom was carried out as a claim for return of the lease deposit (the claim amount is KRW 15 million) by failing to refund the lease deposit from the former owner and the lessor, and the Defendant was aware of the provisional seizure of corporeal movables owned in the above telecomfort. ② The victim was aware of the fact that on August 1, 201, 201, the amount of the lease deposit claim amount to the Defendant and the amount of KRW 15 million were to be paid to the Defendant, not only the amount of KRW 30 million,000,000,000,000,0000,000 won, which appears to be a replacement for the Defendant, but also the Defendant appears to be paid KRW 15 million.

(4) Meanwhile, according to the records, the Defendant and the victim agreed on August 1, 201, and the victim entered into a provisional seizure agreement with 10, August 11, 201, 201, which was 10, 300 won before and after the above agreement, and the Defendant did not know of the above I’s execution of corporeal movables on August 12, 201 and did not know of the fact that 30,00 won was transferred to 1,00 won for the purpose of 10,000 won, and 10,000 won was transferred to 20,000 won and 10,000 won was transferred to 30,000 won for the purpose of 10,000 won for the purpose of 10,000 won and 10,000 won for the purpose of 10,000 won for the purpose of 20,000 won for each of the instant corporeal movables.

Therefore, in light of the good faith principle, it is reasonable to view that the defendant has a duty to notify the victim of the execution of seizure of I, other creditors of the above F, prior to entering into a contract on August 12, 2011 for the instant corporeal movables after entering into a contract on August 1, 2011. Nevertheless, without notifying the victim of the execution of seizure as above, he/she entered into a new agreement with the victim without notifying the victim of the execution of seizure, and thereby he/she received money more than the date agreed on August 1, 201 from the victim by deceiving and deceiving the victim. Thus, the prosecutor's assertion of mistake pointing this out has merit.

3. Conclusion

Therefore, the prosecutor's appeal is justified, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

Criminal facts

The above 2. The entry is as set forth in paragraph (a).

Summary of Evidence

1. Partial statement of the defendant;

1. The original legal statement of the witness J in the court below

1. Police for the accused and each protocol of examination of the prosecution;

1. The police statement concerning G;

1. A public disclosure statement, a contract for credit transfer and takeover, a notice of assignment of claims, a memorandum of performance, and passbook copy;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 347(1) of the Criminal Act (Generally, Selection of Fine)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

The reason for sentencing under Article 334(1) of the Criminal Procedure Act is denied even if the facts charged in the instant case are fully convicted, and it is not against the law, and the damage recovery is not made, and the non-agreement with the victim is unfavorable to the defendant, under the circumstances unfavorable to the defendant, there is no particular criminal punishment except once a fine, and there is no specific criminal punishment in addition to the fine, and the defendant is anticipated not to receive in full the amount already agreed to receive from the previous victim due to the execution of seizure which was made by himself/herself, not the planned crime, and there is any contingent reason for taking into account the circumstance of the crime committed in order to recover the above amount as soon as possible as possible, the circumstances favorable to the defendant shall be taken into consideration, and the punishment shall be determined as per the Disposition, taking into account all other various circumstances, such as the defendant's age, character and behavior, occupation and environment, method and result of the

The presiding judge, the whole judge

Judges' lectures; and

Judges Kim Gin-hee