[1] Whether the trial of the court, which is the defrauded, has the content and effect in lieu of a dispositive act by the victim in a litigation fraud (affirmative)

[2] The case holding that in the real estate auction procedure, where the defendants reported a lien based on the false claim for construction price, it cannot be deemed that there was a commencement of a lawsuit fraud

[1] Article 347 of the Criminal Code / [2] Article 347 of the Criminal Code

Defendant 1 and one other

Prosecutor

Incheon District Court Decision 2009No987 Decided June 11, 2009

The appeal is dismissed.

We examine the grounds of appeal.

In a lawsuit fraud, the judgment of the court, which is the defrauded, should have the content and effect in lieu of the victim's dispositive act, and it does not constitute fraud since it cannot be said that there is an act of giving property or acquiring pecuniary benefits by mistake (see Supreme Court Decision 87Do1153, Aug. 18, 1987, etc.).

The court below affirmed the first instance judgment which acquitted the Defendants of this part of the facts charged on the ground that, in the real estate auction procedure, the Defendants reported a false lien on the basis that the Defendants reported a false lien, and that, in the case where the lien holder reports a lien in the auction procedure as a dispositive act concurrently on the part of the defrauded, the court stated it in the specification of the objects sold, and stated it in the public notice on the sale date, but it merely merely notifies the bidders that there was a lien report on the objects sold, and it cannot be deemed a dispositive act, and the lien holder, as an interested party after the report on the right to object of auction, cannot be deemed as acquiring property or property gains in the auction procedure, since it is in accordance with the provisions of law and cannot be deemed as acquiring property or property gains in the auction procedure.

In full view of the aforementioned relevant legal principles and the status of lien holder in the real estate auction procedure, the lower court’s aforementioned determination is justifiable.

The court below did not err by misapprehending the legal principles as to disposal and property interest in a lawsuit fraud crime, contrary to what is alleged in the grounds of appeal.

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

Justices Yang Chang-soo (Presiding Justice)