Defendant 1 and two others

Both parties

St. L. L.C.

Attorneys Kim Jong-soo et al.

Nonindicted 1

Seoul Central District Court Decision 2004Ra781 Delivered on January 26, 2005

The guilty portion of the judgment of the court below shall be reversed.

Defendants are not guilty.

The prosecutor's appeal is dismissed.

An applicant for compensation shall be dismissed.

1. Summary of grounds for appeal;

A. Defendant 1

(1) misunderstanding of facts

While the Defendant lent KRW 10,00,000 to Defendant 3 as a security, and was provided with one electronic live shop (hereinafter “the instant live shop”) from the Defendant 3 with the view to Nonindicted Party 1’s possession, Defendant 3 only returned the instant live shop to Defendant 3 when Defendant 3 repaid the sum of KRW 30,00,000 to the Defendant including the said money, and Defendant 3 did not have conspired to commit a crime or participated in the crime as stated in the judgment of the court below, the court below found Defendant guilty on the ground of mistake of the fact.

(2) Legal principles

Since the Defendant did not know that he was Nonindicted Party 1 at the time of committing the crime, even if he refused to return the above intention, it cannot be deemed that there was an intention of unlawful acquisition, and even if the Defendant knew that he was Nonindicted Party 1’s ownership, the Defendant transferred the above intention to Nonindicted Party 1 by means of a means to enforce the security right of the claim against Defendant 3. Thus, the Defendant, as he transferred the above intention to Nonindicted Party 1, apart from the fact that there was a civil obligation to settle the remainder of the money calculated by deducting the debt 10,000,000 won secured by the above intention from the disposal proceeds of the above intentional acquisition, the Defendant cannot be deemed to have embezzled the above intention. However, the lower court erred by misapprehending legal doctrine, thereby finding the Defendant guilty.

B. Defendant 2

Defendant 1 lent KRW 10,00,00 to Defendant 3 or was present with Defendant 1,3 at the time of returning the instant intentionality, and notwithstanding the fact that Defendant 1 conspiredd to commit a crime or participated in such crime as stated in the judgment of the court below, the court below found Defendant 1 guilty by mistake of fact.

C. Defendant 3

(1) misunderstanding of facts

The crime of this case was committed by Nonindicted Party 1 intentionally, under the prior plan, by manipulating that Nonindicted Party 1 had Defendant 1 sell the instant implements to another person, which is the ownership of Nonindicted Party 1, and the Defendant did not have conspired to commit the crime or participated in the crime as stated in the judgment of the court below, but the court below found Defendant 1 and 2 guilty by misconception of the fact.

(2) Unreasonable sentencing

The sentence of the court below is too unreasonable because it is too unreasonable.

(d) A prosecutor;

Notwithstanding the Defendants, while having sold and embezzled Nonindicted 2 as indicated in the primary facts charged while having been kept with Nonindicted 1’s own intention as collateral for the loan, the Defendants were aware of the facts charged, the lower court found the Defendants not guilty of the said facts charged by misunderstanding the fact.

2. The defendants and the prosecutor's grounds of appeal are examined together.

A. Summary of the facts charged

around November 1, 2002, Defendant 1 and Cho Jong-hun loaned KRW 10,00,00 to Non-Indicted 1 (name omitted omitted) in the Jongno-gu Seoul Metropolitan Government (detailed number omitted) with the introduction of Defendant 3, while being provided with and kept by Non-Indicted 1 as security, the Defendants conspired to sell the above Do himself to others or offer him as security and pay Defendant 3’s debt with the purchase price or loan.

(1) On December 1, 2003, Nonindicted 4, located in Seocho-gu Seoul Metropolitan Government Seocho-gu’s Seocho-gu’s office at the Seocho-gu’s Seocho-gu Office, and Nonindicted 2, in accordance with Nonindicted 1’s spirit, embezzled it by selling the above intention to Nonindicted 2 at KRW 50,000,000;

(2) Preliminary facts charged, around December 1, 2003, at the above Non-Indicted 4 attorney office, Defendant 3 delivered the above intention as security for KRW 20,000,000 borrowed from Non-Indicted 3 and embezzled it.

(b) Fact of recognition;

According to each evidence of the judgment below, the following facts are recognized.

(1) around October 2002, Non-Indicted 1 provided a bribe to Non-Indicted 5, an employee, and deducted information on horse riding. In order to raise horse riding funds, Non-Indicted 1 borrowed KRW 10,00,000 from Defendant 1, the bondholder, for three days at the (title omitted) side of the (name omitted), from Defendant 2’s side of the (in order to raise horse race funds), with the introduction of Defendant 3, for three days, from Defendant 1, who is the bondholder, and provided Defendant 1 with the instant map as security, and received KRW 9,50,000,000 from Defendant 1, at the indoor horse in the Dongjak-gu Seoul Metropolitan Government Party, from the day following the day, he received KRW 50,000 from Defendant 1.

(2) On the other hand, from November 2001, Defendant 3 borrowed money from Defendant 1 to Defendant 1 in several times with credit card settlement funds, etc., and Defendant 1 bears a total of KRW 20,000,000 as to Defendant 1 at the time when he borrowed money from Defendant 1 as security from Defendant 1.

(3) While having borrowed money from Defendant 1, it was most of the borrowed money, Non-Indicted 1 did not repay the borrowed money to Defendant 1, and Defendant 1 demanded Defendant 3 to repay the borrowed money to Defendant 1, by taking advantage of the fact that Defendant 1 was in custody of the above intention, as well as Non-Indicted 1’s debt 10,000,000 won, which was secured by the above intention to receive as well as the existing debt 20,000,000 won against Defendant 3. From December 2002, the above intention was to lend Defendant 1 to Defendant 3 with KRW 10,000,000 and received as security from Defendant 3 several times, by asserting that Defendant 1 was paid for the borrowed money amount of KRW 30,00,000,000 and collected the above intention.

(4) On the other hand, around December 23, 2002, Nonindicted Party 1 filed a complaint with the Seoul Metropolitan Police Agency by asserting that the Defendants conspired in collusion with the said Seoul Metropolitan Police Agency to obtain a disposition of suspicion on April 29, 2003, and that the Defendants were subject to a disposition of suspicion on May 23, 2003, and that the Defendants were disposed of on the other hand while keeping the said Dog.

(5) When Defendant 3 urged to repay his debt from Defendant 1, as seen above, Defendant 3 had drawn up Nonindicted 3, a curios broker with which Nonindicted 1 had known, to pay his debt to Defendant 1 with the funds raised by that woman. On December 1, 2003, at Nonindicted 4’s office located in Seocho-gu Seoul Seocho-gu, Seoul, Defendant 2 and Nonindicted 3, among Defendant 2 and Nonindicted 3, Defendant 1 borrowed the debt to be repaid to Defendant 1 by settling accounts of the credit relationship with Defendant 1 with Defendant 1, and as seen earlier, as seen above, KRW 20,000,000, interest rate of KRW 5,000,000, total of KRW 35,000,000 borrowed by Nonindicted 1.

Accordingly, on the same day, Defendant 1 received KRW 28,00,000 from Defendant 3 and Nonindicted 3 (20,000,000 among the above money, which was delivered by Nonindicted 3 for the repayment of the above obligation from Nonindicted 2) and prepared a receipt (682,00,000) from Defendant 3, and received a receipt from Nonindicted 3 for the remainder of KRW 7,00,000 (146, the trial record) from Nonindicted 3, and received a receipt from Defendant 3, and received the receipt (144, the trial record) from Defendant 3.

After Defendant 1 and 2 returned, Nonindicted 3 was delivered to Nonindicted 2, who was waiting for the said Dog himself outside the said attorney’s office, and Defendant 3 was separately issued a certificate of custody of the goods on the said Doggg’s own (the investigative record No. 682) by Nonindicted 3, in the vicinity of the said attorney’s office.

(6) Defendant 1 was well aware that not only Defendant 1 and 3, but also Nonindicted 3, as well as Nonindicted 1, as at the time when Defendant 1 transferred the above intention, the said intention was offered as security to Defendant 1.

C. Determination

(1) The primary and ancillary facts charged of the instant case are based on the premise that Defendant 1, who kept both of the instant himself, sells the said intention to Nonindicted 2 with the intention of unlawful acquisition, or Defendant 3 offered it as security to Nonindicted 3 with the intention of unlawful acquisition. As such, it is examined as to whether Defendant 1 and 3 had the intention to illegally obtain the said intention at the time.

(2) As to the fact that Defendant 1 and 2 sold 50,00,000 won to Nonindicted 2 as indicated in the primary facts charged, as to the fact that Nonindicted 3 agreed to pay 15,00,000 won to Nonindicted 2 as its own intermediary around November 5, 2003, Nonindicted 2 purchased 35,000 won from Defendant 1 and paid 20,000,000 won to Defendant 1, 200 won on the same day. Upon delay in paying 15,00,000 won, Defendant 1 agreed to pay 30,000,000 won to Nonindicted 30,000 won for its interest, etc., and distributed the remaining 0,000 won to Defendant 30,000 won for 10,000,0000 won for 20,0000 won for 30,0000 won for 300,000,000 won for 30,00.

However, Non-Indicted 3 voluntarily stated that he paid 20,00,000 won in cash that he received from Non-Indicted 1 to Defendant 1 (in the case of the Investigation Record No. 738), the court below reversed his statement to the effect that he had Defendant 1 pay it through Defendant 3 in the court below, there is no evidence on the source of 20,000,000 won that Non-Indicted 2 paid in the purchase price, or the details of Defendant 1 using the above money. The receipt (in the case of No. 764 of the Investigation Record) submitted by Non-Indicted 3 as evidence that he paid 20,000,000 won to Defendant 1, which was not related to the above 1, and it cannot be concluded that Non-Indicted 3 did not pay the balance to Defendant 200,000 won on the ground that it was difficult to conclude that the date of its preparation was 00,000 won, as otherwise alleged by the non-Indicted 3, etc.

Therefore, as seen earlier, Defendant 1 appears to have received KRW 28,00,00 from Nonindicted 3, etc. on December 1, 2003, and delivered the above intention. From December 2002, Defendant 1 urged Defendant 3 to repay the debt amount of KRW 30,000 to Defendant 3 and to find the above intention. Although the above intention was considerably high, Defendant 1’s transfer of the above intention to Nonindicted 3, etc. (it asserts that the above intention was 500,000 won of the market price) was not calculated based on the actual price, but the transfer price was calculated based on the amount of the claim from Defendant 3, and even if Nonindicted 1 had already been aware that he had already offered the above obligation of KRW 30,00 to Defendant 1 as security, he cannot be seen as having provided the above obligation of KRW 0,00,00,000 to Defendant 1’s own interest by offering it to Defendant 1 as security.

(3) Meanwhile, as seen earlier at the time of Defendant 1’s transfer from Defendant 1, Nonindicted 3 provided the above Dog himself as a security to Defendant 1. Defendant 1 was well aware that he intended to transfer the above Doggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggggg

(4) Ultimately, with respect to the primary facts charged, Defendant 1 lent a horse loan to Nonindicted 1 or Defendant 3, and regardless of the amount of the debt secured by him, Defendant 1 received the amount equivalent to the debt from Nonindicted 3, etc. to be repaid to Defendant 3, and transferred the above Do himself to Defendant 1. It is reasonable to deem that Defendant 1 exercised his security right or received the debt from Nonindicted 3, etc. and transferred his security right ( even if the debt secured by the above Do himself is only KRW 10,00,000,000), apart from the civil liability following the settlement of the claim relationship with Nonindicted 1, Defendant 1’s intention to transfer the above Do himself as a security right, that is, the intention of unlawful acquisition, that is, Defendant 1’s intention to exercise his security right, as he is not the owner of the above Do himself, as he is the owner of the above Do himself).

(5) Furthermore, in relation to the preliminary facts charged, it seems that Defendant 1 was aware that Defendant 3 and Nonindicted 3 were the ownership of Nonindicted 1 at the time of the repayment to Defendant 1, the receipt was prepared and the above certificate was issued to Defendant 3. However, it seems that Defendant 1 was merely the receipt of each of the above documents in the name of Defendant 3 because it was likely that Defendant 3 and Defendant 3 were responsible for the transfer of the above instrument to Nonindicted 3 et al. by asserting that Defendant 1 was Defendant 3 and the above instrument was Defendant 3, and that Defendant 3 and Defendant 3 were aware that the above instrument was in possession of Nonindicted 1 at the time of the repayment to Defendant 1. In light of the fact that both Defendant 3 and Defendant 3 were to receive the above instrument and that both Defendant 3 sold to others and provided the above instrument with the intention to distribute the profits, they cannot be seen that the above instrument was extinguished by borrowing from Defendant 1 as well as Defendant 3’s own interest.

(6) Therefore, there is no evidence to prove the facts of the crime committed on the premise that Defendant 1 transferred the above intention to Nonindicted 3, etc. with the intention of unlawful acquisition, and on the premise that Defendant 3 repaid the debt to Defendant 1 with the money borrowed from Nonindicted 3 and provided the above intention to Nonindicted 3 as a security for the money borrowed by Defendant 3.

3. Conclusion

Therefore, pursuant to Article 364 (6) of the Criminal Procedure Act, the guilty portion of the judgment of the court below shall be reversed, and the prosecutor's appeal shall be dismissed pursuant to Article 364 (4) of the same Act, and the application for compensation order by the applicant for compensation shall be dismissed pursuant to Article 32 (1) of the Act on Special Cases Concerning the Promotion,

The summary of the instant conjunctive facts charged is as stated in Article 2-A(2). As such, the facts charged constitute a case in which there is no evidence to prove facts constituting a crime as stated in Article 2-2(c) and thus, the judgment of innocence is rendered pursuant to the latter part of Article 325

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

Judges Heungn (Presiding Judge)