Defendant

Prosecutor

air route germs

Busan District Court Decision 2009Da6313 Decided January 19, 2010

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

In the instant case, the lower court acquitted the Defendant of the charge of breach of trust by misunderstanding the legal doctrine and adversely affecting the conclusion of the judgment, notwithstanding special circumstances where the crime of breach of trust is established by making it impossible to exercise the victim’s mortgage due to the relationship with which the location of the said car is unknown at all.

2. Summary of the facts charged and the judgment of the court below

A. Summary of the primary facts charged

On January 10, 2008, the Defendant purchased (vehicle registration number omitted) BMW 735 EM in the name of Nonindicted Party 1 (the Nonindicted Party in the judgment of the Supreme Court), the mother of the vehicle, and borrowed KRW 49,500,000 from the victim Nonindicted Party 2 Co. 2, Ltd. located in Busan Jin-gu (hereinafter omitted) to cover the purchase price of the vehicle. On the same day, the Defendant registered the creation of a collateral security right for the said car purchased by the Defendant as collateral with the mortgagee Nonindicted Party 2, Bonds Co. 49,500,000, which is the value of the bond 49,500,000 won. Thus, until the loan is repaid, the obligation to preserve the said car for the purpose of collateral.

On July 2008, the Defendant borrowed KRW 20,00,000 from a person whose name cannot be known in front of the Busan District Court located in the Busan District Court's Dong-dong, Busan District Court, in violation of the above duties, and transferred the said car as security. As such, the Defendant acquired property benefits equivalent to KRW 20,000,000 borrowed from a person whose name cannot be known, and suffered damages equivalent to KRW 49,50,000 from the victim’s loan.

B. The judgment of the court below

The court below found the defendant not guilty of the crime of breach of trust on the ground that the crime of breach of trust does not affect the right to collateral security, even if the defendant provided the automobile with the right to collateral security without the consent of the mortgagee.

3. Judgment of this court on the main facts charged

A. In a case where a mortgage is established on an automobile, the exchange value of the automobile is included in the mortgage, and even if the mortgager sells an automobile and its owner is different, it does not constitute a crime of breach of trust merely by the mortgager selling an automobile which is the object of the mortgage to another person, barring any special circumstance (see Supreme Court Decision 2008Do3651, Aug. 21, 2008).

B. Examining the reasoning of the judgment below and records in light of the above legal principles, the court below's decision of not guilty of the above facts charged is just and acceptable, and there is no error of law that affected the conclusion of the judgment by misunderstanding the legal principles. Thus, the prosecutor's assertion cannot be accepted.

4. Additional charges and determination thereof

A. Preliminary facts charged

On the other hand, the prosecutor around the trial of the court below, while maintaining the facts charged as above which were acquitted at the court below, and the applicable provisions of the law are "Obstruction of Exercise of Rights", and "the defendant purchased (vehicle registration number omitted) BMW 735 EM in the non-indicted 1's name from the trading company located in Changwon-si around January 10, 2008 with the mother of the non-indicted 1, the defendant borrowed 49.5 million won from the Busan Jin-gu Busan High School (hereinafter omitted)'s Busan High School to cover the purchase price for the vehicle, and on the same day, the defendant was entrusted to the above non-indicted 2 corporation and the bond value 49.5 million won for the above vehicle purchased by the defendant as collateral, and the defendant provided the victim with the above non-indicted 1's right to amend the bill of indictment to the non-indicted 1's owner and the above non-indicted 2 corporation's right to use the vehicle as collateral, thereby making it difficult for the defendant to know the above non-indicted 1's right.

B. The judgment of this Court

Since the crime of obstructing another person’s exercise of right under Article 323 of the Criminal Act is established by interfering with another person’s exercise of right by taking, concealing, or destroying “the object of one’s own possession or right,” the crime of obstructing another person’s exercise of right cannot be established if the object taken, concealed, or damaged is not “the object of one’s own,” and since the instant vehicle is registered in the register of automobiles in the name of non-indicted 1, the owner of the said vehicle is the non-indicted 1. Even upon examining all the evidence of the submission of the inspection, it cannot be recognized that Non-indicted 1, the owner of the said vehicle, was concealed the said vehicle, or that the Defendant conspired with Non-indicted 1, even if the Defendant concealed the said vehicle, it does not constitute the crime of obstructing exercise of right unless the said vehicle

Therefore, since the conjunctive facts charged in this case constitute a case where there is no proof of crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, the facts identical to the primary facts charged in this case, which was pronounced not guilty in the judgment of the court below,

3. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since it is without merit.

Judges Park Young-young (Presiding Judge) (Presiding Justice)