[지가공시및토지등의평가에관한법률위반][공2003.8.1.(183),1662]
[1] In a case where an employee or other employee of an appraisal business entity has had an appraisal business entity conduct a false appraisal by collecting and providing materials that are contrary to the truth or are objectively reliable in a field investigation by assisting an appraisal business entity, whether such employee or other employee may be deemed to have conducted a false appraisal (affirmative with qualification)
[2] In the case of paragraph (1), whether an appraisal business operator may be punished under the joint penal provisions under Article 35 of the former Public Notice of Values and Appraisal of Lands, etc. Act (affirmative with qualification
[1] In full view of the provisions of Article 2 subparag. 4, Article 27(1), and Article 33 subparag. 4 of the former Public Notice of Values and Appraisal of Lands, etc. Act (amended by Act No. 5954 of Mar. 31, 1999), even if an employee or other employee of an appraisal business entity provided an appraisal business entity with assistance to an appraisal business entity and confirmed the items subject to appraisal through a field investigation and provided an appraisal business entity with the pertinent materials that are not true or objectively reliable in collecting the pertinent materials necessary for appraisal, such employee or other employee shall not be deemed to have provided an appraisal business entity with false appraisal, unless the employee or other employee has conspired with the appraisal business entity with the intent to conduct a false appraisal, or had the appraisal business entity conduct a false appraisal based on the misrepresentation of the materials collected by the appraisal business entity known to the effect that the materials were true or objectively reliable.
[2] If an employee or any other employee collects data necessary for appraisal by assisting an appraisal business entity and does not fall under the case where an appraisal business entity is deemed to have conducted appraisal by public offering with an appraisal business entity, not only the employee or any other employee but also the corporation or individual may not be punished in accordance with the joint penal provisions under Article 35 of the former Public Notice of Values and Appraisal of Lands, etc. Act (amended by Act No. 5954 of March 31, 199)
[1] Article 2 subparag. 4, Article 27(1), and Article 33 subparag. 4 of the former Public Notice of Values and Appraisal of Lands, etc. Act (amended by Act No. 5954 of March 31, 199) / [2] Article 27(1), Article 33 subparag. 4, and Article 35 of the former Public Notice of Values and Appraisal of Lands, etc. Act (amended by Act No. 5954 of March 31, 199)
[2] Supreme Court en banc Decision 95Do2870 delivered on July 15, 1999 (Gong1992, 157), Supreme Court Decision 91Do801 delivered on November 12, 1991 (Gong199Ha, 1696)
Defendant 1 and one other
Prosecutor
Attorney Im Jong-soo
Jeonju District Court Decision 2002No51 delivered on August 16, 2002
The appeal is dismissed.
According to Articles 27(1) and 33 subparag. 4 of the former Public Notice of Values and Appraisal of Lands, etc. Act (amended by Act No. 5954, Mar. 31, 199; hereinafter referred to as the "Act"), where an appraisal business operator (including an employee or a certified public appraiser of an appraisal corporation or a certified public appraiser's office) has intentionally conducted a false appraisal, the term "appraisal" refers to determining the economic value of an object subject to appraisal as provided in Article 2 subparag. 4 of the Act and expressing the result thereof. Thus, even if an employee or other employee of an appraisal business operator conducted a wrongful appraisal by collecting and providing an appraisal business operator with any material contrary to the truth or objective trust in collecting relevant materials necessary for appraisal by supporting an appraisal business operator, it shall not be deemed that the employee or other employee has conspired with the appraisal business operator with intent to make a false appraisal, or that the appraisal business operator or other employee has conducted a false appraisal based on a false appraisal by providing the appraisal business operator with the most reliable and objective data collected by the appraisal business operator.
Article 35 of the Act provides that if a representative of a juristic person, or an agent, employee or other worker of a juristic person or individual commits an offense in violation of the provisions of Articles 33 and 34 of the Act, not only shall the offender be punished, but also the juristic person or individual shall be punished by the penal provisions of the respective Articles. As the prosecutor asserts, in order to ensure the effectiveness of the penal provisions of the respective Articles, even if the juristic person or individual does not directly commit an offense in violation of the provisions of the said Articles, both the juristic person and the juristic person or individual shall be punished by both the offender and the individual. Thus, the offender shall also be punished by the penal provisions of the respective Articles (see, e.g., Supreme Court Decisions 91Do801, Nov. 12, 1991; 95Do2870, Jul. 15, 199).
Although the reasons stated by the court below are somewhat inappropriate, the conclusion that the defendants' employees Kim Chang-ho, and Ansan et al. are not likely to have committed a false appraisal crime under Article 33 subparagraph 4 of the Act and Article 27 (1) of the Act in the form of indirect principal offender in collusion with the same persons or using the same persons who do not know of such circumstances, and thus, the defendants shall not be punished under the joint penal provisions under Article 35 of the Act, and there are no errors in the misapprehension of legal principles as to the joint penal provisions under Article 35 of the Act, which affected the conclusion of the remaining judgment.
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yoon Jae-chul (Presiding Justice)