Defendant

Defendant

Woo-hoon

Chuncheon District Court Decision 2005Gohap632 Decided February 1, 2007

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of the facts charged and the judgment of the court below

The summary of the facts charged in the instant case is that the Defendant is the representative director of the Shinwon-ri Corporation (trade name omitted) located in Gangnam-gu, Gangnam-do, and the victim Nonindicted Party 1, as the representative director of the corporation located in Suwon-ri, on July 13, 2002, by the order of provisional seizure on real estate (No. 2002Kadan1762), provisionally seizes the site located in Gangnam-ri (hereinafter omitted) located in the Nam-ri, which was owned by the said corporation on July 13, 202. The Defendant was at the risk that the sale by 21 households out of the (name omitted) apartment 45 households, which had been expected to be extended to be sold to the military unit after the said company had been located in the said site. The victim did not have the intent

On October 9, 2002, at the parking lot of the Sinpo-dong, Sinpo-si, Sinpo-si, Sinpo-si, Sinpo-si, Sinpo-si, the following: “The victim would have been unable to sell an apartment by putting his/her own provisional attachment, so the provisional attachment would have been cancelled; if so, 10 million won will be paid, 3 million won will be given first, and the remainder of 7 million won will be paid in full within one week from the date on which the construction of the building is completed,” and that he/she obtained necessary documents from the victim as well as the provisional attachment and obtained pecuniary benefits equivalent to the value of the above real estate by cancelling the provisional attachment, and the court below found the defendant guilty of this evidence.

2. Summary of grounds for appeal;

As the Defendant did not have any obligation of KRW 30 million to be paid to Nonindicted Party 1, the right to be preserved for the instant provisional seizure does not exist, and thus, Nonindicted Party 1 cannot be deemed to have obtained property benefits due to the cancellation of the provisional seizure of this case. However, the lower court found the Defendant guilty by misunderstanding the facts or by erroneously applying legal principles (which shall be examined ex officio in accordance with the proviso of Article 361-4(1) of the Criminal Procedure Act, even if the written ground for appeal was submitted with an excessive period of

3. Judgment of the court below

The crime of fraud is established by deceiving others and acquiring property or pecuniary benefits from the defective intent. However, according to the records, Nonindicted Party 1 was sentenced to the provisional seizure order of this case, which is the right to preserve the claim amounting to KRW 30 million by submitting the confirmation document of Nonindicted Party 2’s preparation, and which is the right to preserve the claim amounting to KRW 30 million. The above confirmation document was re-written out by Nonindicted Party 2 to the Defendant that the above fact confirmation was voluntarily prepared by Nonindicted Party 1 regardless of his own intent, and Nonindicted Party 1 filed a lawsuit against the Defendant for the claim of construction cost amounting to KRW 27 million (3 million deducted from the above preservation right amount of KRW 27 million paid by the Defendant at the time of the provisional seizure cancellation of this case) but it cannot be viewed that the provisional seizure order of this case was void due to lack of evidence to recognize the existence of the source of claim (the claim related to construction, agreed amount of money, or obligation to acquire money). Accordingly, the provisional seizure order of this case cannot be viewed as having been cancelled by the Defendant or the right holder of the provisional seizure.

Thus, the judgment of the court below which judged the defendant not guilty on the ground that the facts charged in this case are without proof of facts of crime, is erroneous in the misapprehension of legal principles. Thus, the defendant's assertion is with merit.

4. Conclusion

Therefore, the defendant's appeal is justified, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged against the defendant is as stated in the above 1.1. This constitutes a case where there is no proof of facts constituting a crime for the same reason as stated in the preceding reasons for reversal, and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act and the summary of the judgment is announced in accordance with Article 58(2) of the Criminal Act. It is so decided

Judges Park Jin-young (Presiding Judge)