(영문) 광주지방법원 2019.4.30. 선고 2018노2654 판결

The lower court found the Defendant guilty of the instant facts charged and sentenced a fine of KRW 1,00,000 on the ground that the intent of unlawful acquisition may be recognized as long as the instant vehicle is found by taking advantage of the victim’s intent against the victim, who is an occupant of the vehicle.

B. The judgment of the court below before remand

The Defendant filed an appeal against the above judgment on the grounds of mistake of facts, misunderstanding of legal principles, and unreasonable sentencing, and the judgment of the court below was reversed and acquitted on the grounds that it is difficult to readily conclude that the Defendant had an intention to obtain unlawful acquisition

A prosecutor filed an appeal against the judgment of the party before remanding the case on the grounds of misunderstanding the legal principles, and the Supreme Court reversed the judgment of the party before remanding the case and remanded the case to the collegiate division of the court.

2. Summary of grounds for appeal;

A. Error of mistake

1) The lower court determined as if the settlement issues between B and E still remain at the time of the instant case, but B had already agreed on the operation and performance of duties of E and vehicles around October 2014, which was one year prior to the occurrence of the instant case, and arranged both the settlement of accounts and the refund of vehicles, including the instant vehicle.

2) Since the Defendant did not have participated in the specific method of recovering the instant vehicle, the Defendant cannot be deemed to have conspired with C.

B. Legal principles

The Defendant did not have any interest in the instant vehicle as a employee B, and did not have any actual use of the said vehicle, and there was no intention to obtain unlawful acquisition of the instant vehicle.

C. Unreasonable sentencing

The punishment of the lower court (fine 1,000,000) is too unreasonable.

3. Determination

A. Determination of misunderstanding of facts

Comprehensively taking account of the evidence duly admitted and examined by the court below, the issue of return of the vehicle of this case cannot be deemed to have been completely organized due to the termination of the contract between B and E at the time of this case, and the fact that the defendant conspired with C is sufficiently recognized. The fact finding by the court below is just, and there is no error of law by misconception of the fact as alleged by the defendant, which affected the judgment.

1) B entered into a contract for vehicle operation and performance of duties with E on January 2012, and transferred the possession of the instant vehicle owned B to E, and E performed the leasing of the instant vehicle according to the said contract.

2) B terminated a contract for vehicle operation and performance of duties with E on October 13, 2014, but E did not return the instant vehicle after a considerable period of time.

3) Accordingly, on July 23, 2015, B delegated debt collection business to D with the content of collecting claims arising in relation to vehicles, identifying and tracking the location of vehicles, etc.

4) E leased the instant vehicle to the victim around July 2015.

5) On July 27, 2015, C, a staff member of D, discovered the instant vehicle in possession of the victim, and then informed the Defendant, a staff member of D, through I, who is an employee of B. The Defendant instructed C to withdraw the “emergency measure” on the vehicle, and C towing the instant vehicle parked around 23:45 on the same day.

B. Judgment on the misapprehension of legal principles

1) The Criminal Act refers to the removal of possession from one’s possession against the will of the possessor of another and the transfer of possession to one’s or a third party (see, e.g., Supreme Court Decision 2010Do11771, Apr. 26, 2012). Even if a right to claim delivery, etc. based on an agreement is acknowledged, larceny is established by an act of excluding possession against the will of the possessor unless it is acknowledged that the possessor explicitly and implicitly consented to the transfer of possession at the time of the possession of the property. In such a case, barring any special circumstance, it cannot be said that the possessor did not have any intention to acquire the illegal possession (see, e.g., Supreme Court Decision 2009Do5064, Feb. 25, 2010). Moreover, even if there exists a circumstance that taking a certain object against the will of the possessor would result in the act of the possessor’s interest, or that the owner’s presumed consent was not granted, barring any special circumstance.

2) Examining the factual relations in light of the aforementioned legal principles, the Defendant’s act of towing the above vehicle owned by a person other than himself/herself against the victim’s will, which is the possessor of the instant vehicle, and moving it to his/her own or B’s possession constitutes a theft. Moreover, even if the Defendant committed such act in order to recover the vehicle for the benefit of the owner as an employee of B, the owner of the vehicle, even if he/she intended to recover the vehicle for the benefit of the owner, such circumstance alone does not necessarily mean that the Defendant did not intend to acquire the vehicle illegally. The lower court’s judgment is justifiable, and it did not err by misapprehending the legal doctrine

C. Determination on the assertion of unfair sentencing

In a case where there is no change in the conditions of sentencing compared to the original judgment, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion, it is reasonable to respect such a case (see, e.g., Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015). It is true that there exist favorable sentencing factors, such as that there is no history of criminal punishment imposed by the Defendant in the instant case, and that there is a motive leading to the instant crime. However, such circumstance is sufficiently reflected in the lower judgment’s sentencing. However, there is no change in sentencing conditions that may be specially considered in the trial compared to the lower court’s lower judgment. Considering all the conditions of sentencing specified in the instant argument, including the situation before and after the instant crime, the lower court’s punishment is within the reasonable scope of discretion, and it is not recognized that

4. Conclusion

Since the appeal by the defendant is groundless, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act.