Whether failure to notify the lessor of his/her property status, etc. in entering into a lease contract constitutes deception referred to in fraud (negative with qualification)

In a lease contract or lease contract of a house, the essence of such lease is that a lessor occupies a house which is the object of lease and enables a lessee to use and benefit from a house, and a lessee pays a lease deposit or a rent, etc. In the event that such lease contract is terminated, the lessor’s obligation to return a lease deposit and the lessee’s obligation to return the object of lease are in a relationship of simultaneous performance. In particular, as to a lease of a residential building, the lessee guarantees opposing power and preferential right to payment under the Housing Lease Protection Act based on the possession of leased house, moving-in report under the Resident Registration Act, fixed date, etc. In particular, unless the lessee was aware of such circumstances due to a mortgage, etc. established on the object of lease and was actively or not notified of the fact that the lessee did not enter into the lease contract, it cannot be readily concluded that the lessor was aware of his/her property status, etc. in a crime

Article 347(1) of the Criminal Act

Defendant

Defendant

United States of America

Attorney Kim Jong-soo

Ulsan District Court Decision 2004Ra2557 decided Apr. 6, 2005

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

The victims of this case did not report the Defendant, the actual owner of the loan of this case, and did not conclude each lease contract for the loan of this case, but did not confirm the documents, such as the building of this case and the certified copy of the register, and the Defendant concluded the lease contract of this case with the victims, while entering into the lease contract of this case, did not have a criminal intent to acquire the deposit money or deceiving the victims, the court below erred by misapprehending the legal principles, or by misapprehending the legal principles, thereby finding the facts of this case to have committed each fraud.

B. The assertion of unfair sentencing

Even if a family and conviction is recognized, the defendant reflects the fact that he has caused social controversy in the instant case, and considering the fact that he was punished as a previous crime of fraud, released his father's sick care, and lived faithfully with his father, the sentence of the court below against the defendant is too unreasonable.

2. The facts charged and the judgment of the court below

A. Summary of the facts charged

From October 2002, the Defendant: (a) was a person who had been operating credit business with the name of the card tin bank, and (b) took over the loan without any funds, and (c) took over the loan from Nonindicted Party 1 to use it as collateral, and (d) succeeded to the existing lease deposit obligation of KRW 270 million in Ulsan-gu, Ulsan-do, 298-4, which was constructed by Nonindicted Party 1, and purchased KRW 20 million in the name of Nonindicted Party 2 by paying a balance of KRW 20 million in the name of the Defendant; (b) there was no difference between the lease deposit and the purchase amount; (c) there was no difference between the loan amount of KRW 90 million in the above Nonindicted Party 2 and the loan amount of KRW 20 million in the name of the above Defendant’s credit card 2,000,000,000 and KRW 58,000 in the name of the above Defendant’s credit card 2,000,000 more than the above credit card 2.

1. On October 14, 2002, the victim non-indicted 3 of this year reads that "a deposit shall be returned without any problem after the expiration of the contract term" to the victim non-indicted 3 of this year, and that it shall receive the balance amount of KRW 5 million from the same place around November 23, 200, the sum of KRW 45 million and the sum of KRW 50 million from the same place; and

2. Around January 18, 2003, the victim non-indicted 4 (hereinafter referred to as the "victim non-indicted 4") stated that "a deposit shall be returned without any problem after the expiration of the contract term. When a loan or establishment is made within the contract term, a contract may be reversed at any time, and in such case, a deposit shall be immediately refunded," and that he/she received 5 million won from the female at the same place on the same day on the 27th of the same month, 30 million won in intermediate payment, 15 million won in total, and 50 million won in the same place on the 30th of the same month, respectively.

B. The judgment of the court below

As to this, the lower court found the Defendant guilty on the ground that “the legal statement of the Defendant, the protocol of interrogation of the Defendant’s prosecution (including the part concerning Nonindicted 5’s statement), each of the police interrogation protocol against Nonindicted 2, and Nonindicted 1, and each of the police statements against Nonindicted 6, and Nonindicted 5, and each of the real estate register, each real estate lease agreement, and a certificate,” were macro

3. The judgment of this Court

(a) recognised facts;

In full view of the evidence duly examined and adopted by the court below and the defendant's statements in the court of the first instance and the witness non-indicted 4's statements in the court of the first instance, the following facts can be acknowledged:

(1) Since around 1998, Nonindicted Party 1 had been engaged in the construction business. From September 2001, Nonindicted Party 1 constructed a gymnae on the land of Ulsan (detailed address omitted) and 191.7m2 (hereinafter “instant gymna”) which he had owned from around September 201, and completed the construction around December 12 of the same year.

(2) On March 18, 2002, Non-Indicted 1 completed the registration of preservation of ownership with respect to the loan of this case. Non-Indicted 1 was composed of 2 households of the first floor (101, 102 square meters of each floor), 2 households of the second floor (201, 202), 3rd floor (301, 302), and 2 households of the second floor (301, 302).

(3) Around that time, Nonindicted Party 1 leased the said six households to Nonindicted 6, etc., who was the tenants. However, the amount of the lease deposit was KRW 263 billion in total, with the amount of KRW 101, KRW 35 million, KRW 102 KRW 43 million, KRW 201, KRW 202, KRW 45 million, and KRW 301 KRW 50 million, respectively, and KRW 301 KRW 50 million.

(4) On August 13, 2002, the Defendant purchased the instant loan from Nonindicted Party 1 in the purchase price of KRW 300 million, succeeded to the obligation of the tenants to return the lease deposit to the said six households, paid the remainder to Nonindicted Party 1 in the amount of KRW 20 million, and completed the registration of ownership transfer in the name of Nonindicted Party 2 with respect to the instant loan.

(5) The Defendant: (a) around October 14, 2002, leased Nonindicted 3 KRW 202,00,000,000 for the lease deposit; (b) leased Nonindicted 3 KRW 50 million for the lease deposit; (c) received KRW 5 million for the remainder of KRW 45 million on November 23 of the same year; (d) around January 18, 2003, Nonindicted 4 leased KRW 302,000 for the lease deposit; and (b) around January 18, 2003, Nonindicted 4 received KRW 5 million for the lease deposit; and (e) KRW 30 million for the lease deposit from Nonindicted 4 on the same day; and (e) KRW 30 million for the intermediate payment from around the same month on the same day; and (e) KRW 50 million for the remainder of KRW 15 million on the 30th of the same month around the same month.

(6) As above, the Defendant returned each of the KRW 50 million received from Nonindicted 3 and Nonindicted 4 as the lease deposit to the previous tenants, and the remainder was used as the expenses of the office operated by the Defendant.

(7) At the time when the Defendant entered into a lease agreement with Nonindicted 3 and Nonindicted 4 with respect to each of the above lending units, “A” on the register of the lending units of this case did not have any registration to restrict any rights, such as provisional seizure. The column of “B” on the register of the lending units of this case (the matters concerning rights other than ownership) was ① around October 14, 2002, when Nonindicted 3 entered into the said lease agreement, only the registration of the establishment of the right of lease on March 25, 2002, under the name of Nonindicted 7, a person having a right to lease on the second floor of the lending units of this case, as of March 25, 2002, and ② around January 18, 2003, when Nonindicted 4 entered into the said lease agreement, there was no registration of the establishment of the right to lease on a deposit basis, including the registration of the establishment of the right to lease on a deposit basis under the name of Nonindicted 7 and the registration of the establishment of the right to lease on November 202.

(8) After that, Nonindicted 8, a tenant of the 102th floor of the 1st floor of the instant loan, failed to refund the lease deposit from the Defendant despite the expiration of the lease term. On April 3, 2004, upon receiving the lease order, he applied for the commencement of compulsory auction on or before May 21, 2004, and the compulsory auction procedure was in progress, and Nonindicted 9 was decided to permit sale of the instant loan at KRW 64,110,000 on September 9, 2005.

(9) In the above compulsory auction, the appraisal value of the building and land of the loan of this case was assessed as KRW 301,545,00 (price 28, 2004 at the time of price). Meanwhile, as seen earlier, Nonindicted 3 registered the establishment of chonsegwon on November 12, 2002 in its name with respect to the loan of this case No. 202, and Nonindicted 4 moved into the loan of this case on January 30, 203, and received the move-in report and the fixed date.

(b) Markets:

(1) While the Defendant made a statement to the effect that he would make a confession of the facts charged in the instant case during the third trial of the Prosecutor’s Office and the lower court, in light of the overall purport of the Defendant’s statement at the police and the Prosecutor’s Office, the Defendant’s testimony at the examination of the defense counsel at the court of the lower trial, the reasons for appeal, and the legal statement at the court of the first instance, it is deemed that the Defendant concluded a lease agreement with Nonindicted 3 and Nonindicted 4 as stated in the facts charged in the instant case, and received a lease deposit or lease deposit (hereinafter “lease deposit”), and it cannot be deemed that the Defendant made a confession with the intention of deceiving the victims of each of the above lease deposits from the beginning, and without the intent and ability to return each of the above lease deposits from the victims.

(2) The judgment consortium, fraud is established when property is delivered or pecuniary gain is acquired based on the defective intent of another person by deceiving him. The deception as a requirement for fraud refers to all affirmative or passive acts that have to abide by each other in property transactional relations, and whether a certain act constitutes deception should be determined generally and objectively by taking into account the specific circumstances at the time of the act, such as the transactional situation, other party's knowledge, experience, occupation, etc. (see Supreme Court Decisions 97Do3054, Apr. 24, 1998; 98Do3263, Dec. 8, 1998, etc.).

In the lease contract or lease contract of a house, the essence of such lease is that a lessor occupies a house which is the object of lease and enables a lessee to use and make profits from a house, and a lessee pays a lease deposit or pay a rent, etc. In the event that such lease contract is terminated, the lessor’s obligation to return a lease deposit and the lessee’s obligation to return the object of lease are in a relationship of simultaneous performance. In particular, as to the lease of a residential building, the lessee guarantees opposing power and preferential right to payment under the Housing Lease Protection Act based on the possession of leased house, moving-in report under the Resident Registration Act, fixed date, etc. In particular, unless the lessee was aware of such circumstances due to a mortgage, etc. established on the object of lease, he/she can not be readily concluded as deception in fraud solely on the ground that the lessor did not notify his/her property status, etc. in entering into the lease contract.

As to the instant case, the Defendant stated that he was able to pay the lease deposit to the new lessee when he purchased the instant lease agreement with Nonindicted 4 while taking advantage of his capacity to borrow the instant lease agreement. However, in light of the actual situation of the lease agreement, it cannot be deemed that the Defendant concluded each of the above lease agreements with Nonindicted 3 and Nonindicted 4 with the intention to acquire the lease deposit, and the Defendant did not appear to have been able to be able to return the deposit money for each of the instant lease agreements on the sole basis of the following circumstances: (a) even if the Defendant’s acquisition of the right to borrow the instant lease agreement from Nonindicted 4 upon the commencement of the instant lease agreement, it is difficult to view that the Defendant would not have been able to obtain the right to lease from Nonindicted 4’s creditors, etc. on the basis of the fact that it was difficult to say that the Defendant would have concluded the instant lease agreement with Nonindicted 3 on the basis of the fact that he would not have been able to obtain the lease deposit in his own name at any time; and (b) the Defendant appears to have received the remainder of the lease agreement.

C. Sub-committee

Therefore, the facts charged of this case do not have sufficient evidence to acknowledge that the defendant had the intention to acquire the lease deposit of this case or had committed deception in order to acquire the lease deposit of this case, and thus, it should be pronounced not guilty as it constitutes a case where there is no proof of the crime, and thus, the court below should have found the defendant guilty. The defendant's ground of appeal pointing this out has merit, and the judgment of the court below is no longer maintained.

4. Conclusion

If so, this court reverses the judgment of the court below in accordance with Article 364(6) of the Criminal Procedure Act, and decides again as follows after pleading.

The summary of the facts charged in the instant case is as seen earlier. As such, the facts charged in the instant case constitutes a case where there is no evidence of crime as stated above, and thus, the Defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act

It is so decided as per Disposition for the above reasons.

Judges High-Level (Presiding Judge)