Article 323 of the Criminal Code provides for the meaning of the possession by another person to interfere with the exercise of rights, and whether the possession by a person who has been awarded a successful bid through an invalid auction procedure constitutes "the possession by another person" under Article 323 of the Criminal Code (affirmative)

In the crime of interference with the exercise of rights under Article 323 of the Criminal Act, the term "the possession of another person" means the possession by title, that is, the possession with the right to possess the property on the ground of justifiable cause, and thus, it does not necessarily constitute the possession by the principal right, but it does not necessarily constitute a lawful possession, such as the possession based on the concurrent performance right, etc., and on the other hand, in a case where a bilateral contract becomes null and void and each party must return that one party acquired, if the performance of the obligation is enforced first only to either party, it would be contrary to the principle of fairness and good faith, and thus, it is reasonable to apply mutatis mutandis Article 536 of the Civil Act by deeming that the obligation of return of each party is in a concurrent performance relationship. This legal principle applies to the case where the auction procedure becomes null and void. Thus, the possession of a successful bidder who occupies the object of auction at the invalid auction procedure is a legitimate possession, and the possessor is a person who occupies another party's object in the

Article 323 of the Criminal Act, Articles 536 and 549 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Defendant

Defendant

Daejeon District Court Decision 2003No1172 delivered on July 1, 2003

The appeal is dismissed.

We examine the grounds of appeal.

In the crime of interference with the exercise of rights under Article 323 of the Criminal Act, the term "the possession of another person" refers to the possession by title, that is, the possession with the right to possess such a thing based on a justifiable cause, and it does not correspond to the possession by a larceny who has no right to claim (see Supreme Court Decision 94Do343, Nov. 11, 1994, etc.). However, it does not necessarily mean only the possession by this right, but also constitutes legitimate possession such as the possession based on concurrent performance defense rights, etc.

On the other hand, in cases where each party is required to return bilateral contract which becomes null and void, and each party is required to return one another, if the obligation to return is enforced first, it would violate the principle of fairness and good faith, and thus, each party’s obligation to return is deemed to have a simultaneous performance relationship, and thus, it is reasonable to apply Article 536 of the Civil Act mutatis mutandis. This legal principle also applies to cases where an auction procedure becomes null and void (see Supreme Court Decision 94Da55071 delivered on September 15, 1995). Thus, the possession of the successful bidder who occupies the object of auction at an invalid auction procedure is a lawful possession, and the possessor is a person who possesses another person’s object in the obstruction of the exercise of right

(2) According to the facts duly admitted by the court below, 3.0 square meters of the above 10-13-2 square meters of the building on the 10-13-13-2 (hereinafter referred to as the "land of this case"), and 64.63 square meters of the house on the 1-2-3-2-3-story residential building (hereinafter referred to as the "existing building of this case") were originally owned by the defendant; 9.00 square meters of the previous 3-15.7 square meters of the building of this case; 9.06 square meters of the previous 1-2-3-3-2-story residential building of this case (hereinafter referred to as the "existing building of this case") and the existing 9-1-2-1000 square meters of the building of this case; and 9-1-2-1000 square meters of the building of this case, the new 3-1-2-1-2-10000 square meters of the building of this case were destroyed and remaining 1-1-1-222-3-3-1-3-10000 square buildings.

If the above circumstances are the same, in an invalid auction procedure, the order of tin was awarded the bid and possessed part of the above building, and even if there was no right to possess the above building, the defendant has at least a right to defense of simultaneous performance against the defendant, and thus, it is deemed that he lawfully occupied the occupied part of the tin in the order of tin. Therefore, the order of tin constitutes a person who possesses another's object in the

The part of the court below's erroneous determination that "the de facto condition that "the possession of another person" under Article 323 of the Criminal Code is unrelated to the source of possessory right," which states that "the actual condition that it is not the source of possessory right," was erroneous, but the conclusion that the defendant guilty of the obstruction of another's right is justifiable,

Supreme Court Decision 77Do1672 Decided September 13, 1977 cited in the ground of appeal is not appropriate to apply to this case as it differs from this case.

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

Justices Kim Yong-dam (Presiding Justice)