The case affirming the judgment of the court below which held that in the case where the creditor attempted to acquire the amount exceeding the amount to be actually distributed in the course of distributing the claim, but he did not commit the attempted crime, he can recognize the attempted crime.

Article 347(1) of the Criminal Act

[Plaintiff-Appellant] 2001Do1610 decided Jun. 28, 2002 (Gong2002Ha, 1885)

Defendant 1 and two others

Defendant 1 and one other and the prosecutor

Attorney Jeon Soo-soo

Seoul Southern District Court Decision 2006No157 Decided September 1, 2006

All appeals are dismissed.

1. As to Defendant 1 and 2’s grounds of appeal

In full view of the circumstances as indicated in its reasoning, the court below held that Defendant 1 and 2 conspired with Defendant 2 to obtain a provisional seizure of real estate with a false statement that the amount of credit card processing bond against Defendant 1 is 35 million won, despite the fact that the amount of credit is 88,400,000 won, so that the provisional seizure registration of the real estate of this case under the provisional seizure order is entered as to the real estate of this case owned by Defendant 1, for which the compulsory auction procedure is in progress according to the provisional seizure order, and that Defendant 2 attempted to obtain a money exceeding the dividends calculated on the basis of the actual amount of credit amount of 35,00,000 won by filing an application for a report on rights and demand for distribution at the auction court, but it can be found that the attempted crime of fraud was committed on the basis of the actual amount of credit amount of 8,40,000 won. In light of the records, there is no error in the misapprehension of legal principles as to the mistake of facts or the establishment of fraud, as alleged in the

2. As to the Prosecutor’s Grounds of Appeal

Examining the reasoning of the judgment below in light of the records, the court below is justified and acceptable in maintaining the part concerning Defendant 3’s attempted to acquire dividends from Defendant 1 and 2 and the judgment of the court of first instance that acquitted Defendant 3, among the charges of this case against Defendant 1 and 2, on the grounds that it is difficult to readily conclude that the instant promissory note gold claim against Defendant 3 was false, and there is no error of law such as misconception of facts due to the violation of the rules

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

Justices Kim Yong-dam (Presiding Justice)