Action against a person who was not actual (negative)

In a lawsuit fraud, the judgment of the court, which is the defrauded, should have the content and effect in lieu of the victim's dispositive act. Even if a judgment is rendered to a person who is not actually in existence, the judgment cannot recognize the contents and validity in lieu of the victim's dispositive act, and therefore, it cannot be assumed that the act of delivering property by mistake cannot be assumed, so the establishment of fraud cannot be recognized

Article 347(1) of the Criminal Act

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

Defendant

A co-inspector;

Daegu District Court Decision 91No2641 delivered on February 13, 1992

The appeal is dismissed.

As to the Prosecutor’s Grounds of Appeal

The summary of the facts charged in this case is that the defendant did not form a regular meeting but there is an ordinary meeting to compensate for damage caused by an accident in the event of a motor vehicle accident. Thus, the defendant submitted a complaint to the above non-indicted company and its ordinary council for the payment of KRW 12,100,000 jointly and severally with the above non-indicted company and its ordinary council, and attempted to obtain the above amount by deceiving the above court and winning a favorable judgment, but it was attempted to do so by withdrawing the above amount. However, the court below stated that the defendant consistently against the judgment of the court of the court below until the court of the court below, and dismissed the lawsuit against the non-indicted company even though the defendant filed a lawsuit against the above ordinary meeting with the knowledge that the above ordinary meeting does not exist. In addition, there is no evidence to acknowledge the criminal intent of the defendant, and even if the defendant knew the court in the lawsuit against the above non-indicted company, if there is no possibility that the defendant could obtain the defendant's money from the non-indicted company with the name of the defendant, even if it did not exist.

There is no error in violation of the rules of evidence in the process of fact-finding as above in the court below. In the course of litigation fraud, the judgment of the court, which is the defrauded, should be effective as a substitute for the victim's dispositive act (see Supreme Court Decision 84Do2386, Oct. 28, 1986). Even if the judgment is rendered on the above commercial inquiry which did not exist as in the case of this case, the judgment cannot be recognized as a substitute for the victim's dispositive act, and therefore, it cannot be accepted as a time limit for the establishment of fraud as it is impossible to bring about the act of delivering property due to mistake. The judgment of the court below is not erroneous in the misapprehension of the legal principles as to the

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