2015Do6738 (A) Fraud

B. Attempted Fraud

(c) Embezzlement;

1. A;

2. B

Defendants

Attorney B H (PP for the defendant)

Supreme Court Decision 2014Do17409 Decided February 26, 2015

Incheon District Court Decision 2015No910 Decided April 22, 2015

August 27, 2015

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

The grounds of appeal are examined.

1. In order to constitute the grounds for retrial under Article 420 subparag. 2 of the Criminal Procedure Act, the testimony which was evidence in the original judgment should be proved to be false by the final judgment. The term " testimony which was evidence in the original judgment" refers to the testimony adopted as evidence among the grounds in the original judgment and quoted in recognizing the facts constituting a crime (see, e.g., Supreme Court Order 87Mo11, Apr. 23, 1987). If the testimony quoted as evidence in the grounds in the original judgment directly or indirectly is related to the facts of crime, it constitutes "the testimony admitted as evidence in the original judgment" under the above Article 420 subparag. 2 of the Criminal Procedure Act, and as long as it is proved that the testimony was finally false by the final judgment, it shall be deemed that there exists a grounds for retrial under Article 420 subparag. 2 of the Criminal Procedure Act regardless of whether the facts constituting a crime are guilty by other evidence even after excluding the false part (see, e.g., Supreme Court Decisions 2008Do11381, Apr. 2013.

2. Of the grounds for appeal by the Defendants, the lower court stated as one of the grounds for appeal that “the Defendant, along with the victim, stated that “AG Licensed Real Estate Agent Office (“AG Licensed Real Estate Agent”) provided explanation about the recognition work by the assistant assistant to the AG Real Estate Agent Office, and the victim asserted that the victim had consented, but the AG Real Estate Agent Office (“AG Real Estate Agent”) provided that “AC did not speak about the price of the victim, and testified that the victim did not hear the words that the victim would have reached the recognition work,” and stated that “The 4th of the original decision).” In addition, the lower court rejected the Defendants’ assertion that the amount of KRW 27.4 million paid to AC is not included in the embezzlement amount of the Defendants’ embezzlement, and that the amount was ordinarily paid to AG Real Estate Agent’s assistant to AG Real Estate Agent Office (“AG Real Estate Agent”) in relation to the sale and purchase of real estate, it is difficult to view that the above amount was ordinarily included in the AG Real Estate Agent’s statement to AD’s 4.

3. However, according to the statement of summary order attached to the statement of summary order and the copy of the search of the Supreme Court, the witness of the first instance court: ① the seller visited the start office at which AC and AD were operated at the same time; ② the seller directly explained the market price, etc. of the goods sold to AD, and even thereafter, AD did not have any contact with E; ③ the witness prepared the above summary order at the court of first instance on March 22, 2013, “I would like to talk about the necessity of the work and preparation of the contract to sell land to A and E,” and “I would like to know that I would like to know that I would like to know that I would like to know that I would like to know that I would like to know that I would like to know that I would like to answer the above questions,” and the witness prepared the above testimony at the court of first instance, "I would like to know that I would like to know that I would like to know that I would like to answer the above questions."

In light of the above legal principles and factual relations, the witness AC’s statement at the court of first instance was adopted as evidence among the reasons of the judgment below and accepted the facts charged of this case, and the circumstantial part concerning delegation of the sale and purchase of real estate in this case between E, D and AC as seen earlier is clearly related to the facts charged of this case, so long as it is proved by a summary order that became final and conclusive, the court below, regardless of whether the aforementioned part of the statement was guilty of facts charged with other evidence, regardless of whether there was a ground for retrial under Article 420 subparag. 2 of the Criminal Procedure Act, where there exists a ground for retrial under Article 383 subparag. 3 of the Criminal Procedure Act.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok

Justices Lee In-bok

Justices Go Young-young

Justices Kim In-young