2019Do2643 Fraudulent

A

Defendant

Attorney Kim Sung-il

Seoul Western District Court Decision 2017No1693 Decided January 24, 2019

May 30, 2019

The judgment below is reversed, and the case is remanded to the Seoul Western District Court.

The grounds of appeal are examined.

1. Summary of the facts charged in this case

A. On April 5, 2016, the Defendant concluded a contract for the sale of real estate with the victim, stating that the victim sold the instant apartment building E, and that the victim is asked about ‘Is to use 'Ismanistice' separately from the victim?’s ‘Isn't have any accumulated floodgate system.

B. However, since 2007, the above apartment house was managed several times due to water leakage in the ceiling of the living room, etc. on the following floor, but it still did not be resolved, and the defendant was in the state of large-scale construction replacing the whole protection around November 2015, and thus, he/she should have notified the victim of the above situation. Nevertheless, the defendant deceivings the victim that there is no possibility of concealment and leakage, thereby deceiving the victim of the purchase price of KRW 440 million.

2. On the grounds stated in its reasoning, the lower court affirmed the first instance judgment convicting the Defendant of the facts charged, on the ground that, at the time of the conclusion of the instant sales contract, the victim had been enjoyed for a long time from the Defendant for several years, and thus, had been engaged in water leakage several times. It was determined that, if notified of the fact, the apartment of this case would not have been purchased, or that at least 440 million won, the purchase price of this case would not have been purchased.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. Review of the reasoning of the judgment of the first instance and the record reveals the following facts.

(1) Around February 2006, the Defendant performed artificial construction, such as expanding the balcony part of the living room of the apartment of this case, and H occupied the apartment of this case into the lower floor of the apartment of this case on October 2007.

(2) The first water leakage phenomenon was found in the ceiling of the living room No. 1 after a few years, and the Defendant performed a small-scale waterproof construction work by filling containers with the outside space of the instant apartment complex three times from October 2010 to August 2014.

(3) However, upon the occurrence of water leakage phenomenon in subparagraph 1, the Defendant performed a large-scale waterproof construction project that replaces the balcony head of the living room and repairs defects presumed to be a water source, around November 2015.

(4) On April 5, 2016, the victim respondeded to the following: (a) immediately before entering into a sales contract for the apartment of this case, whether the defendant would be eligible to speak in the old wave?; and (b) the defendant was "no".

(5) On June 3, 2016, H had a written request from the Defendant for a statement on water leakage issues. On June 3, 2016, H prepared a draft statement to the effect that “If the same number of defects occur due to an existing leakage, he/she will withdraw appropriate measures” and sent it to H by text message. However, as H demanded for a indefinite change of the warranty period, the agreement under the said draft statement was not concluded.

(6) Accordingly, on June 9, 2016, the Defendant: (a) prepared a new draft containing the content that “in the event that a trade is not effected when H was intended to sell the said draft after drilling, the Defendant would purchase H at the market price” and sent it to H as text messages; (b) did not reach an agreement as to the above content due to H’s refusal.

(7) On July 2016, the Defendant removed from the apartment of the instant apartment and the victim moved into the same water leakage phenomenon as that of the past in I around July 2016.

B. Comprehensively taking account of the following circumstances revealed through the above facts, it is difficult to view that the Defendant’s deception by deceiving the victim to enter into the instant sales contract by intentionally concealing or not notifying the fact of leakage in the past for the purpose of sexual intercourse is proven without reasonable doubt.

(1) In light of all circumstances, such as the content and the process of preparation of the report, including the fact that the Defendant had presented twice to H after the conclusion of the instant sales contract, only the content of the resolution of problems caused by water leakage and the measures to be taken in the event of water leakage again, and that H demanded only the extension of the security period, it seems that there was no additional leakage until the time when the instant sales contract was concluded after the Defendant performed a waterproof and waterproof construction work.

(2) Therefore, on November 2015, which was implemented on a large scale differently from the existing small scale and waterproof construction, the Defendant is highly likely to believe that a leakage floodgate has been resolved at the time of the instant sales contract due to the flood control construction. In addition, the Defendant’s offer to H may be deemed as having voluntarily made a somewhat scopic proposal to purchase the No. I market price if the same leakage phenomenon occurs within each draft presented by the Defendant.

(3) In addition, since the apartment of this case, other than subparagraph (excluding subparagraph (1), did not have any number, it may be understood that the Defendant asked the victim to ask for the water leakage of the apartment of this case at the time of entering into the instant sales contract.

(4) The Defendant appears to have had no intention to conceal water leakage by notifying that the apartment building of this case was replaced by water leakage on the lower floor, and making such content recorded in the water ledger to the other real estate agent’s office.

(5) Therefore, it is difficult to readily conclude that the Defendant intentionally concealed the fact of leakage solely on the ground that the Defendant, before concluding the instant sales contract, did not notify the fact that water leakage occurred in the past Nos. 1 or asked the victim’s question whether the Defendant would have no water leakage. In order for the other party to not notify the other party of any fact to constitute deception against the other party, it should be obvious in light of the empirical rule that the other party did not conclude the sales contract or would not pay the purchase price if he/she knew of such fact (see, e.g., Supreme Court Decision 2008Do1652, May 8, 2008).

However, in full view of the following circumstances revealed through the facts and records of the recognition, it is also reasonable deliberation that the victim would not conclude the instant sales contract if he was notified of the fact of leakage in the past, or would not conclude the sales contract at least in the same price.

It is difficult to see that it has been proven without room.

(1) If the water leakage was an important requirement to decide upon the conclusion of a sales contract, it is common to first verify whether the victim was currently water leakage and was previously water leakage at the time of visiting the apartment of this case for the purpose of verifying the water distribution, but there is no circumstance that the victim confirmed such fact in the process of selecting the water distribution and completed the purchase of the apartment of this case.

(2) It is not enough to view that the victim has taken as an important factor in the sales contract, such as not only asking questions as to the number of persons immediately before concluding the sales contract, but also failing to verify the specific facts as to the additional leakages in the defendant's answer that there is no leakage.

(3) Therefore, the issue of leakage can have been one of the several factors in which the victim selects the apartment subject to purchase, but it is difficult to deem that it was an important matter to decide on the conclusion of a sales contract.

(4) In particular, in the process of the criminal conciliation, the instant sales contract was revoked and the Defendant presented a proposal for the mediation that the Defendant would return the full amount of the purchase price to the victim, but the victim refused and continued to reside in the instant apartment, and the Defendant was obligated to repurchase the apartment at the time of market price after five years from the victim’s intention, and eventually

(5) Therefore, it is difficult to readily conclude that it is evident in light of the empirical rule that the victim would not have concluded the instant sales contract if the Defendant had notified the victim of the past leakage and construction work.

(6) In addition, at the time of entering into the instant sales contract, there was no additional leakage after large-scale waterproof construction, and thus, it is difficult to deem that the sales price has been reduced solely on the possibility of water leakage, which could not be known again as a result of the fact that the fact of leakage was notified to the victim.

(7) Rather, in light of the fact that the Defendant believed that the water leakage problem was resolved and, if the same water leakage phenomenon occurs later, expressed his/her intent to bear the repair cost several times, it seems that there is a high possibility that the Defendant would be liable for damages arising therefrom if the same water leakage phenomenon occurs later in lieu of the payment reduction.

(8) Therefore, it is difficult to readily conclude that the fact that the victim would not enter into a sales contract with the same price if the defendant notified the victim of the past leakage.

D. Nevertheless, the lower court found the Defendant guilty of the instant charges by readily recognizing the causal relationship between the Defendant’s deception, deception and the victim’s disposal act. In so doing, the lower court erred by misapprehending the legal doctrine on deception in fraud, thereby adversely affecting the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hwan

Justices Park Sang-ok

Justices Lee In-bokon

Justices Noh Jeong-hee