(영문) 부산지방법원 2009.7.16.선고 2008노5026 판결

Defendant A1 is punished by a fine of KRW 2,00,000, and Defendant A2 is punished by a fine of KRW 4,000,000. In the event that the Defendants fail to pay each of the above fines, the above Defendants shall be confined to the Labor House for the period calculated by converting KRW 50,000 into one day.

As to Defendant A2, one day of detention before the sentence of the lower judgment shall be included in the period of detention in the workhouse.

To the Defendants, each of the above fines is ordered to pay an amount equivalent to the above fines. Of the facts charged in the instant case, the Defendants are acquitted.

Reasons

1. Summary of grounds for appeal;

A. The judgment of the court below (one year of imprisonment with prison labor and one year of suspended execution) is too unreasonable considering the following: (a) Defendant A2 misleads Defendant A2 about the part of the perjury in the civil litigation instituted by Defendant A2 upon Defendant A2’s request; (b) Defendant did not obtain any monetary or economic benefits from Defendant A2 through the above evidence; and (c) Defendant A2 did not have any ambiguous fact in advance regarding the above civil litigation brought by Defendant A2.

B. Defendant A2

(1) misunderstanding of facts

Since the Defendant suffered property damage caused by a building without permission owned by C1, it is only a legitimate compensation for damage by filing a civil lawsuit, which cannot be deemed as a litigation fraud, and even if the Defendant did not instigate a perjury to A1, the lower court erred by misapprehending the fact that the lower court convicted all of the charges of this case, thereby adversely affecting the conclusion of the judgment.

(2) Unreasonable sentencing

Even if each of the facts charged in the instant case is found guilty, the lower court’s sentencing (two years of imprisonment with prison labor, eight months of suspended sentence) is too unreasonable.

2. Determination

A. Of the facts charged in the instant case, as to the fraud against the Defendants (as to the Defendant A2, the grounds of appeal are determined and at the same time, Defendant A is determined ex officio)

(1) Summary of the facts charged

Defendant A2 filed a lawsuit for damages with the Busan District Court on August 11, 2005 on the ground that the victim C1, the owner of the same piece of land and housing adjacent to Busan High-dong, Busan High-dong - around June 2005, extended the building without permission of 1.75 meters high and 3.2 meters wide from the above piece of land, and thus, Defendant A2 cannot lease part of the house owned by the Defendant due to infringement of right to sunshine, etc. Defendant A2 had been present at the Busan District Court around November 2006 to the extent that it is difficult to prove damages caused by infringement of right to sunshine during the lawsuit for damages, and Defendant A2 did not submit the above statement to Defendant A2 to the court for sale and purchase by 00,000 won as evidence, and Defendant A2 and C1, the owner of the land and the housing, were unable to purchase and sell the building at the original market price due to the decline of the value of the housing. Defendant A2 and Defendant C1’s intent of damages should be proved as evidence.

However, the above - Defendant A1, who was delegated by Defendant A2 to sell a house, did not purchase the access road to the said house for the reason that the access road to the said house was narrow so that there was no value of purchase, but did not lower the purchase price more than KRW 50 million for the reason of extension without permission of C1, and there was no omission that was completed even the sales contract and revoked.

As above, the Defendants were sentenced to a judgment of the court on February 9, 2007 that “C1 shall pay KRW 20 million to A2,” and the appeal filed by C1 on February 15, 2008 was dismissed, and the above judgment was finalized on March 14, 200.

(2) The judgment of the court below

The court below found the Defendants guilty of this part of the facts charged in accordance with the evidence of each judgment.

(3) Judgment of the court below

A litigation fraud is an offense involving acquiring the other party's property or property benefits by deceiving the court and obtaining a judgment favorable to himself/herself. The punishment of such a crime is inevitable to inevitably bring about the chilling of the civil trial system that anyone may receive remedy through a lawsuit, claiming favorable to himself/herself. Thus, except in cases where the defendant acknowledged the crime, unless there are cases where the facts in the lawsuit are objectively apparent or the defendant clearly knows false arguments in the lawsuit or where there is a trace that the defendant attempted to manipulate evidence, etc. (see, e.g., Supreme Court Decision 2003Do373, May 16, 2003). In addition, in order to establish a litigation fraud, it is insufficient to establish a lawsuit fraud, just because there is no claim as alleged at the time of the lawsuit, and even if it is well known that there is no claim, it is sufficient to recognize the court by a false assertion and proof even if it is well known that there is no claim for the lawsuit, and it does not constitute fraud (see, e.g., Supreme Court Decision 3013Do204.

According to the evidence duly admitted and investigated by the court below and the following facts, ① the damages claim against A1 was filed against the victim C1 (the Busan District Court 205No. 8062), and the building without permission extended by C1 (hereinafter referred to as "the extended building") was part of the neighboring land owned by the defendant A2 for the reason that the market price of the land and the building owned by the defendant A2 was reduced due to the infringement of the right to sunshine, etc., and ② the construction of the building without permission extended by the Busan District Court 2 was within a reasonable distance from the boundary of the real estate owned by the defendant C12 (the construction of the building must be at least 0.5 meters away from the boundary line of the building) and the construction of the building without permission extended by the defendant C1, which was constructed on the boundary line of the building A2, and thus, the extended building was not subject to the order of the defendant 2 and the removal of the building without permission.

Therefore, the court below's finding the Defendants guilty of the Defendants' fraud in the lawsuit, or erred by misapprehending the legal principles on the establishment of fraud caused by fraud in the lawsuit, thereby affecting the conclusion of the judgment. Therefore, the judgment of the court below cannot be maintained as it is.

B. Of the facts charged of the instant case, the following circumstances revealed by evidence duly admitted and investigated by the lower court regarding Defendant A2’s perjury, namely, ① the extension of the instant building is not problematic, but there was no access road for the construction of the building after the purchase of real estate owned by Defendant A2, and there was a probable cause for the applicant to purchase the building after the removal of the building, and ② the applicant to purchase the land and the building owned by Defendant A2 was not aware of the right to enjoy sunshine between the newly constructed Bara and the neighboring building due to the concentration of surrounding buildings, and ② the applicant to purchase the land and the building owned by Defendant A2 was at the time of the 3rd new report prepared by the prosecution, and there was no possibility that the applicant to purchase the land and the building owned by Defendant A would have been subject to reduction of 50 million won or more, and considering that the purchase and sale of the land and the building owned by Defendant A2 would have been more likely to have been aware of the fact that the above Defendant 2 did not have made any fundamental issue than the access to the extended building or the building site thereof.

3. Conclusion

Therefore, prior to rendering a judgment on the Defendants’ assertion of unfair sentencing, Defendant A1, among the facts charged in the instant case, was ex officio, and Defendant A2, accepted the grounds for appeal, and the lower judgment is reversed under Article 364(2) and (6) of the Criminal Procedure Act, and another judgment is rendered as follows.

Criminal facts and summary of evidence

The criminal facts of Defendant A2’s perjury and Defendant A1’s perjury are as stated in Articles 2 and 3 of the criminal facts indicated in the judgment below, and the summary of the evidence is the same as the corresponding column of the judgment of the court below, and thus, they are cited as it is in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

Defendant Al: Article 152(1) of the Criminal Act (in the case of perjury), Defendant A2: Articles 152(1) and 31(1) of the Criminal Act (in the case of perjury)

1. Selection of punishment;

Selection of each fine (the following grounds for sentencing shall be taken into account):

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Inclusion of days of detention in detention;

Defendant A2: Article 57 of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act concerning the defendants

In light of the records, although the defendants' act of aiding and abetting the defendants or committing perjury should be strictly punished. However, the defendants' act of aiding and abetting the defendants or committing perjury among the facts charged in this case is the first offender, and the defendant A1 is found not guilty on the grounds as seen earlier as to the fraud of the lawsuit against the defendants among the facts charged in this case, and the defendant A1 is aware of his perjury and is in depth against the defendant's act of committing perjury (However, on September 3, 2008, at the time when the third prosecutorial letter was prepared, the defendant A1 led to the confession of all of his perjury and the defendant's act of committing the crime in this case. However, according to the records, the pertinent case where the defendant A1 gave the above perjury (the Busan District Court Decision 2005No8062) was declared partially favorable on February 9, 2007 and confirmed on April 27, 2007, considering the need for confession of the above defendant A1's act of committing the crime in this case, the motive and circumstances leading the defendant's participation in the crime in each of this case, and circumstances.

The summary of the charge of fraud against the Defendants among the facts charged in the instant case is as shown in Article 2-A and (1). The facts charged in the instant part constitutes a case where there is no proof of crime as stated in Article 2-A and (3) and thus, a judgment of innocence is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act.

It is so decided as per Disposition for the above reasons.