A. The meaning of "when the reason for return is evident" under Article 134 of the Criminal Procedure Act

(b) Where a person who acquired goods by deceiving a victim deposits them to a third party, the propriety of returning the goods to the victim;

A. The phrase "when the reason to return" as stipulated in Article 134 of the Criminal Procedure Act refers to cases where it is evident that the victim under private law has the right to request the delivery of the seized article, and it cannot be said that there is a clear reason to return in cases where there is a little legal doubt about the above claim for delivery.

B. Even if the purchaser acquired the goods from the victim as a fraudulent act, it is unclear whether the victim has cancelled the purchaser's declaration of intention to sell the goods by fraud, and if there is no evidence to confirm that (A) the purchaser received the above goods from the purchaser and deposited them in the warehouse of the re-appellant and the re-appellant was aware that the above goods were the stolen, the re-appellant is a legitimate possessor, and there is a deposit fee claim for the purchaser who kept the goods, and it seems that there is a lien for the above goods by the claim, so it is difficult to view that the victim has the right to claim the return of the above goods against the re-appellant. Therefore, it is not necessary to settle it by civil procedure, not by refund to the victim.

Article 134 of the Criminal Procedure Act

Re-appellant

Attorney Hong Hong-soo

Seoul Criminal Court Order 84 Assistant1 dated May 11, 1984

The order of the court below is reversed, and the case is remanded to the Panel Division of the Seoul Criminal Court.

The grounds of reappeal of the re-appellant are examined.

According to Article 134 of the Criminal Procedure Act, the stolen property seized shall be returned to the victim by ruling even before the completion of the defendant's case where the reason for return is clear, and this provision shall apply mutatis mutandis to the case where the prosecutor seizes it pursuant to Article 219 of the same Act. The above provision means the case where it is evident that the victim under the private law has the right to request the return of the seized property, and the above right to request the return of the seized property shall not be deemed to be a case where there is an obvious reason for return in fact, even if there is a legal doubt. According to the judgment below as determined by the court below, non-appeal 1 was to purchase it from the above non-appeal 20 December 20, 1983 without the ability to make payment to the non-appeal 1 and deposited it over several occasions until the second half of the same month with the delivery of this case to the re-appellant. Accordingly, it is evident that the re-appeal 2 had the above re-appellant transferred the above re-appeal to the court or the defendant 2.

However, according to the investigation records as above, it is not clear whether the non-appeal 1 acquired by the non-appeal 2 from the above non-appeal 2 as a result of the fraudulent act such as the final judgment of the court below, and it is not clear whether the non-appeal 2 has cancelled the trade declaration due to the fraudulent act to the non-appeal 1, and the above things are delivered to the non-appeal 1 and deposited in the warehouse of the non-appeal 4, and it cannot be confirmed that the non-appeal 3 was in custody of the re-appeal 1, and otherwise, it cannot be confirmed that the non-appeal 1 was aware that the above things are stolen. Thus, the re-appeal is a legitimate possessor, and it seems that the non-appeal 1, which was kept, has a lien on the above things. Thus, it is difficult to view that the non-appeal 2 has a right to claim the return of the above things to the victim, and it should not be returned to the victim, and it should be resolved by civil litigation.

However, the court below did not examine whether the re-appellant has legitimate authority in the possession of the object, and held that it is clear for the third party to return to the seller only the fraudulent act between the parties to the transaction, without examining whether the re-appellant has legitimate authority, the court below erred in the misapprehension of legal principles as to the obvious reason for return to the victim in the return of the seized object, and in failing to exhaust all necessary deliberations. Thus, it is justified as a ground for appeal.

Therefore, it is so decided as per Disposition with the assent of all participating judges to reverse and remand the original decision.

Justices Kang Young-young (Presiding Justice)