[1] The meaning of and criteria for determining "the possession" of another person among the requirements for the establishment of larceny, and the time when a successor who acquired the ownership due to the death of the owner of the property acquires the possession and can constitute larceny against the inheritor

[2] In a case where the defendant living in an apartment with Gap who was in an internal-related relationship, and was indicted for committing a theft by having a bank containing a certificate of real estate registration right, etc., which belongs to Eul and Byung's heir's death, from the above apartment, the case holding that the court below erred by misapprehending legal principles in holding that the defendant's act of larceny cannot be deemed to constitute larceny on the ground that since it cannot be deemed that Eul et al. actually controlled the bank located in the apartment at the time when he moved out with the bank, etc., and thus, it cannot be deemed that

[1] The term “the possession” in this context is established by infringing another’s possession of property. The term “the possession” refers to a pure de facto relationship that actually controls any property, and is not necessarily consistent with the possession under the Civil Act. Of course, even if the possession is practically controlled, it does not necessarily require the possessor to directly possess or always take charge of the property. In this sense, whether the possessor actually controls the property should be determined in light of social norms by taking into account the size and shape of the property, its identity, and the temporal and temporary relationship between the possessor and the property, etc. In such a case, Article 193 of the Civil Act that the previous possessor’s possession is naturally transferred to his/her heir by inheritance due to his/her death does not apply to the “the possession of another’s property” as a requirement for larceny, and even if the possessor acquired the ownership by inheritance from the person who occupies the property, the heir should have de facto control over the property within the meaning mentioned above, and it can only be established as a crime of larceny against the inheritor.

[2] In a case where the defendant living in an apartment with Gap who was in a relationship with Gap, and was indicted for committing a theft with Eul's heir Eul and Byung's provisional possession of the above apartment, the case holding that the court below erred in the misapprehension of legal principles as to larceny since the defendant's act did not constitute larceny since it cannot be deemed that the defendant had actually occupied Eul's house and Byung's house at the time when Eul and Byung's house was used for the defendant's house and it did not actually occupied Eul's house and Byung's house, and the defendant had resided in the apartment before Gap's death, and Gap's own consciousness Eul and Byung resided in the apartment house without his entire residing in the above apartment house, and succeeded to Gap's ownership of the apartment house due to Eul's ownership, etc., but the defendant did not request Eul's house and Byung's house's temporary possession after Eul's death, and thus, it cannot be viewed that the defendant's act constitutes larceny by infringing Eul's possession of the bank, etc.

[1] Article 329 of the Criminal Code, Article 193 of the Civil Code / [2] Article 329 of the Criminal Code

[1] Supreme Court Decision 80Do509 delivered on August 25, 1981 (Gong1981, 14307)

Defendant

Defendant

Attorney Han-hee

Daejeon District Court Decision 2010No382 Decided May 4, 2010

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

The grounds of appeal are examined.

1. The summary of the facts charged in this case is as follows.

As the Defendant was in de facto marital relationship with Nonindicted Party 1, the Defendant livedd with Nonindicted Party 1 in his own Government-Si, 576 Domina first claim apartment (hereinafter “instant apartment”) (hereinafter “instant apartment”). On August 23, 2005, Nonindicted Party 1 died suddenly around August 26, 2005, the Defendant owned the instant apartment around the 26th day of the same month with a registration certificate on the real estate located in the Dongducheoncheon-si, Dongcheon-si, the real estate located in Dongcheon-si, and the ownership of the apartment in this case, etc., three copies of the sales contract for both weeks, one copy of the lease contract, and one bank (hereinafter “the instant bank”). However, the Defendant acquired the foregoing documents from Nonindicted Party 3 and 4, and owned the instant apartment, thereby falling under the ownership of Nonindicted Party 4 and 1.

2. On the grounds delineated below, the lower court acknowledged the Defendant’s larceny.

In other words, the inheritance of possession under the Criminal Act is not recognized. However, inasmuch as the ownership of the instant apartment that was the instant bank due to the death of Nonindicted Party 1 was transferred to the inheritor, and the inheritor acquired the right to control and manage the instant apartment, it is reasonable to view that the heir was in possession of the said bank even if the inheritor did not specifically recognize the existence of the said bank in his or her possession. Ultimately, the Defendant’s act with the instant bank constitutes larceny as it infringes not only the heir’s ownership but also the heir’s possession.

3. However, we cannot agree with the judgment of the court below.

A. The term “the possession” in this context is established by infringing another’s possession of property. The term “the possession” refers to a pure de facto relationship that actually controls any property, and is not necessarily consistent with the possession under the Civil Act. Of course, even if it is a realistic control, the possessor does not necessarily have to directly possess or always take charge of the property. In this sense, whether the possessor actually controls the property should be determined in light of social norms by taking into account the size and shape of the property, its identity, and the temporal and temporary relationship between the possessor and the property (see Supreme Court Decision 80Do509, Aug. 25, 1981, etc.).

Thus, Article 193 of the Civil Code that the possession of the previous possessor naturally transferred to his heir by inheritance due to his death does not apply with respect to “the possession of another person” as a requirement for larceny, and even if the ownership was acquired by inheritance from the owner who occupies the property, the heir shall have de facto control over the property within the above meaning, but only from that time, theft against the inheritor may be established.

B. According to the records, the defendant had resided in the apartment of this case from his death before his death in internal relations with non-indicted 1, and Non-indicted 3 and Non-indicted 4, who had been acquired between his former wife and Non-indicted 5, had never resided in the apartment of this case, and had been living and living in another place as Non-indicted 5. However, upon the death of Non-indicted 1, Non-indicted 1 inherited the ownership of the apartment of this case, and Non-indicted 3 and Non-indicted 4 did not request the delivery of the instant apartment of this case or the provisional bank of this case from the apartment of this case from his ownership, etc., on the basis of his ownership after Non-indicted 1 died. However, it can be acknowledged that Non-indicted 6, who was the model of Non-indicted 1, requested the defendant to open the door of the apartment of this case and the replacement of the key of the present apartment of this case around August 29, 2005.

Therefore, it cannot be deemed that the defendant used the provisional bank in this case from August 26, 2005, and possessed the provisional bank in this case where non-indicted 3 and non-indicted 4 used the provisional bank in this case, and therefore, it cannot be deemed that the defendant violated the possession of the provisional bank in this case by the non-indicted 3, etc. and constitutes larceny.

Nevertheless, for reasons indicated in its holding, the court below erred by misapprehending the legal principles regarding possession in larceny, or by misunderstanding facts against logical and empirical rules, and thereby adversely affecting the conclusion of the judgment, when the court below maintained the judgment of the court of first instance which recognized that the defendant's possession of the instant bank was infringed by the victims' possession of the instant bank. The allegation in the grounds of appeal assigning this error is with merit.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)