[1] Whether a court judgment on the part of the defrauded in a litigation fraud must have the content and effect in lieu of the victim’s dispositive act (affirmative)

[2] In a situation where there are owners of unregistered buildings, the original owner of which acquired ownership by constructing a new building and there is another person who has only the title holder of building permit for the purpose of securing claims therefor, whether the creditor against the title holder of building permit in collusion with the said title holder and applied for a compulsory auction on the above building against the said title holder, and accordingly, the court rendered a decision to commence the auction. Accordingly, in a case where the preservation of ownership was made by entrustment to the said title holder, and where the building was sold at the said auction procedure, whether the above request for auction

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

[1] Supreme Court Decision 84Do2642 delivered on October 8, 1985 (Gong1985, 1506) Supreme Court Decision 87Do153 delivered on August 18, 1987 (Gong1987, 1485) Supreme Court Decision 2009Do5900 Delivered on September 24, 2009

Defendant

Defendant

Suwon District Court Decision 2012No3781 decided December 20, 2012

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

The grounds of appeal are examined.

1. Fraud is established by deceiving a person, thereby omitting the ownership of a building by mistake, and thereby taking property or making profits from property. Even if there exists deception, if there is no dispositive act arising therefrom, fraud is not established. Even in so-called litigation fraud, the judgment of the court, which is the defrauded, should have the content and effect in lieu of the dispositive act of the victim, and if not, there is no act of giving property by mistake (see, e.g., Supreme Court Decision 84Do2642, Oct. 8, 1985). Therefore, in a situation where there is an unregistered owner of a building whose ownership was originally acquired by constructing a new building with his/her own expense and effort and there is a separate owner of a building permission for the purpose of securing the claim, the creditor against the person under construction permission in collusion with the above nominal owner, and thus, the court's decision to commence compulsory auction on the above building has become effective in the future commissioned by the above nominal owner, and even if the building was sold in the auction procedure, it is difficult to view that the above dispositive act or the above judgment against the victim is not a genuine act of fraud.

2. The facts charged in the instant case are as follows: “The owner of the instant house, the victim of which is substantially the owner, had the Defendant receive a false payment order against the Defendant on the ground of the Nonindicted Party, and had the Nonindicted Party file an application for a compulsory auction on the instant house against the Defendant, thereby completing registration of preservation of ownership in the future of the Defendant, and further, attempted to recover the money invested in the instant house through the above auction procedure, but was attempted to receive the money by withdrawing the auction.”

The court below affirmed the judgment of the court of first instance which found the defendant guilty of the above facts charged, on the ground that, as long as the housing of this case was at a risk of being sold through the above auction procedure, the application for compulsory sale by official auction can be deemed to have been filed by deceiving the court and seeking a decision in lieu of the victim's act of disposal. In light of the above legal principles, the court below erred by misapprehending the legal principles as to the act of disposal by litigation fraud, which affected the conclusion of the judgment. The

On the other hand, the court below pointed out the fact that, in the above auction procedure, where the housing of this case is sold and the sale price is paid in full, the victim lost the ownership, but it is merely an acquisition by succession to the auction real estate, and therefore, it cannot be asserted against the real owner of the real estate.

3. The judgment of the court below is reversed without examining the remaining grounds of appeal, 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 Chang-suk (Presiding Justice)