(영문) 부산지방법원 2016.10.27.선고 2015고정2648 판결

Defendant shall be punished by a fine of KRW 1,000,000. If the Defendant fails to pay the above fine, the above Defendant shall be confined in a workhouse for a period calculated by converting KRW 100,000 into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

The defendant is not guilty of interference with the business of the defendant.

Reasons

Criminal facts

The Defendant’s relationship between F and joint businessman, a contractor of a new hotel construction work in Busan Metropolitan Government D

is a person who was in force.

1. Forgery of private documents;

Around August 26, 2011, the Defendant: (a) did not have been delegated by G, the owner of the pertinent hotel’s registry, to offer the first floor of the building as security; (b) even though having not been entrusted by H with the said building, the Defendant heard from H that I lent KRW 200 million to a third party to prepare a sales contract in the name of G as security; and (c) accordingly, H prepared a real estate sales contract with the purport of selling the first floor of the said hotel to the seller’s office; and (d) affixed a seller’s name, resident number, and other personal information to the seller’s column. Accordingly, the Defendant forged one copy of a real estate sales contract, which is a private document concerning the rights and obligations of G, without authority, for the purpose of exercising the said contract in collusion with H.

2. Uttering a falsified investigation document;

The Defendant had the said H deliver to I a forged real estate sales contract in the name of G with the date, time, at the place, as described in paragraph (1). Accordingly, the Defendant used a forged private document in collusion with H.

Summary of Evidence

1. Defendant's legal statement;

1. Each legal statement of witness G and J;

1. The suspect interrogation protocol of the police against K;

1. A statement of confirmation of facts of H’s preparation;

1. The application of a real estate sales contract, a real estate lease contract, a protocol of examination of a witness (201 group 10989), an agreement, each memorandum of understanding, a statement of execution, and statutes;

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

Article 231 of the Criminal Act, Articles 234 and 231 of the Criminal Act, the selection of fines, respectively.

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The acquittal portion

1. Summary of the facts charged

On July 6, 2014, the Defendant interfered with G hotel construction and lease business by force, such as installing dump trucks at the entrance of the above hotel and preventing people from entering the building by visiting the entrance, although there is no right to own ownership or direct possession of the above hotel at E hotel as indicated in facts constituting a crime from around 00 to August 5, 2014.

2. Determination:

(a) Facts of recognition;

According to the records, the following facts are recognized:

1) On January 8, 2009, the Defendant entered into a sales contract with L, M, and N to purchase the instant hotel site from 0 to 608 square meters (hereinafter “the instant hotel site”), which is the instant hotel site, and decided to operate a corporation F (hereinafter “F”) and the instant hotel construction business. On February 15, 2009, F purchased the instant hotel site from a P hotel established by a co-owner, etc. of the instant hotel site and completed the registration of ownership transfer on September 25, 2009 with respect to the instant hotel site, and the Defendant continued to operate the instant hotel construction business as a Busan branch president of F.

3) On May 24, 201, F borrowed KRW 768520,00 as collateral the instant hotel site and the newly-built hotel between G on May 24, 201, and concluded the following MOU (hereinafter “instant MOU”) with a view to transferring the ownership of the instant hotel site to G and changing the name of the owner of the new hotel to G (hereinafter “instant MOU”) (Evidence No. 77-82, MOU).

A (F) A (the same shall apply hereinafter) shall borrow from B (the complainant G; the same shall apply hereinafter) 0,000 won (7,678,520,000 won) of Q hotel as security for the land and its ground of Busan-gu 00,000,000,000,0000,0000,0000,00000,0000,0000,0000,000,0000,0000,000,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,0000,000,0000,000,0000,000,000,000,000,00,00).

The additional taxes shall be prescribed by the laws and regulations separately.[10] When the ownership is preserved in the name of B after the completion of the construction, various registration taxes and other expenses shall be borne by A.

4) On May 27, 2011, F prepared a sales contract with G to sell the instant hotel site for KRW 4,150,000,000 (Evidence No. 103 of the Evidence No. 103) in accordance with the said letter of Understanding, and prepared a contract to enter into a contract with G to receive KRW 3,60,000 from G on the same day (i.e., loan amount of KRW 7,678,520,000 - KRW 4,150,000).

5) The instant hotel was completed on March 19, 2012 and approved for use, and G completed registration of ownership preservation on December 24, 2012.

6) However, following the conclusion of the instant memorandum of Understanding, F’s creditors filed a lawsuit seeking revocation of fraudulent act with respect to the instant hotel site from September 27, 201 to April 9, 2012, issued a provisional disposition ordering a claim for revocation of fraudulent act with respect to the instant hotel site from September 27, 2011 to a total of six claims for revocation of the instant hotel site as a preserved right, and did not result in the sale of the instant hotel and the repayment of obligations to G.

7) On February 1, 2012, F drafted a letter of performance that it promises to pay interest of KRW 3,612,604,230 per annum 20 per annum from December 201 to the date repayment is made.

8) From July 6, 2014 to August 5, 2014, the Defendant occupied and managed the instant hotel in a partnership with F, and prevented people from entering the hotel entrance, as described in the facts charged, by installing dump trucks at the hotel entrance on the ground of lien, etc. from July 22:00 to August 5, 2014.

B. Whether the facts charged of this case are guilty

1) On the premise that G, the complainant, acquired ownership of the hotel in this case by accord and satisfaction, the prosecutor indicted him as a obstruction of business by blocking entrances as stated in the facts charged, and thereby obstructing G’s interior work and lease work. In order to find the charged facts of this case guilty, G, the complainant, obtained ownership of the hotel in this case, should be proven without reasonable doubt.

2) However, according to the above facts, it is reasonable to view that F, in borrowing funds from G on May 24, 201, in relation to the Defendant and Dong business, offered the instant hotel site and the new hotel on the site as security for repayment of the debt, as a transfer to G, and completed the registration of ownership transfer on the instant hotel site on the 27th of the same month in the future, and around that time, changed the name of the owner of the instant hotel, and there is no evidence to prove that G finally acquired the ownership of the instant hotel site and the newly constructed hotel due to payment in substitutes or sale.

In this context, in order to acquire ownership by exercising a security right to the hotel site of this case and the hotel, G, a mortgagee, must notify the debtor, etc. of the appraised value of the liquidation amount after the due date of payment of the claim pursuant to Article 3 (1) of the Provisional Registration Security Act, and notify the debtor, etc. of such fact if there is no liquidation amount in this case, and if it is deemed that there is no liquidation amount, it should be notified. However, there is no evidence to support that G, who claimed that he acquired ownership of the hotel of this case through payment in kind or sale, has acquired ownership through the liquidation procedure as above

3) Furthermore, the prosecutor asserts to the effect that Article 5 of the MOU of this case provides that “A may sell or lease the pertinent building prior to the lapse of the repayment period,” on the ground that the said building may be sold or leased prior to the lapse of the repayment period. However, in light of the language, structure, and purport of Article 5 of the above MOU, it is interpreted to the effect that “A” as the debtor shall not sell or lease the instant hotel to another person without the consent of the mortgagee after the expiration of the repayment period, and it is difficult to interpret that G shall naturally acquire the ownership of the hotel of this case without going through liquidation procedures after the expiration of the repayment period. Furthermore, in the event that Article 5 of the above MOU provides that “A” may sell or lease the relevant building prior to the expiration of the repayment period, it is sufficient to deem it as null and void as it violates the mandatory provisions of the Provisional Registration Security Act.

4) Ultimately, the evidence submitted by the prosecutor alone is insufficient to recognize that the complainant G acquired the ownership of the hotel of this case by payment in substitutes, sale in kind, etc. and the debtor F or the defendant did not have any ownership or possession right to the hotel of this case, and there is no other evidence to prove otherwise.

3. Conclusion

Therefore, since this part of the facts charged constitutes a time when there is no proof of crime, the defendant is acquitted under Article 325 of the Criminal Procedure Act.