Whether a lawsuit fraud against a deceased person is established (negative)

In a lawsuit fraud, the judgment of the court, which is the defrauded, must have the content and effect in lieu of the dispositive act of the victim, and, except for this, there is no act of giving property by mistake, and thus, it does not constitute fraud. Thus, if the defendant's lawsuit is filed against the deceased person, the judgment against the deceased person cannot be deemed to have effect on the inheritor as it does not take effect according to its content, and thus, it cannot be said

Article 347 of the Criminal Act

Supreme Court Decision 84Do2368 delivered on October 28, 1986 (Gong1986, 3149) Supreme Court Decision 87Do852 delivered on December 22, 1987 (Gong1988, 377) Supreme Court Decision 97Do632 delivered on July 8, 1997 (Gong197Ha, 2439)

Defendant

Prosecutor

Attorney Cho So-young

Changwon District Court Decision 99No2066 delivered on April 11, 2000

The appeal is dismissed.

We examine the grounds of appeal.

In a lawsuit fraud, the judgment of the court, which is the defrauded, must have the content and effect in lieu of the dispositive act of the victim. In other cases, it shall not be deemed that there is an act of giving property by mistake, and thus, it does not constitute fraud. Thus, if the defendant's lawsuit was filed against the deceased person, the judgment against the deceased person cannot be deemed to have effect on his/her heir as it does not take effect according to the content thereof, and thus, constitutes fraud (see, e.g., Supreme Court Decisions 84Do2368, Oct. 28, 1986; 87Do852, Dec. 22, 1987).

According to the reasoning of the judgment of the court below, the court below decided to acquire the forest of this case by means of the defendant's future transfer registration after obtaining a favorable judgment on the facts that although the defendant did not purchase the forest of this case from 25 persons, such as the deceased Kim Jong-ok, which is the co-owner of the forest of this case, 201,124 square meters (hereinafter referred to as "the forest of this case") located in Changwon-dong, Changwon-dong, the fact that he was killed, and that the aggregate land tax of the forest of this case is imposed in the defendant in the future, and decided to acquire the forest of this case in this case on December 29, 1994, and purchased the forest of this case from 275,000 won from the defendant (25, such as Kim Jong-dong, etc.), the defendants were not guilty of the above fact that he had obtained the judgment of the court of this case 9,000 won prior to the above sale of the forest of this case from 19,000 won.

In light of the records and the above legal principles, the fact-finding and judgment of the court below are just, and furthermore, since the defendant's act in this case cannot be deemed as an impossible attempted crime of fraud, the court below did not err by misapprehending the legal principles as to impossible attempted crime of fraud of lawsuit and discretion of the judge.

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

Justices Lee Jae-in (Presiding Justice)