주택법위반
The judgment of the court below is reversed.
Defendant shall be punished by a fine of two million won.
The above fine shall not be paid by the defendant.
1. The summary of the grounds for appeal (misunderstanding of facts) at the time when the Defendant received five million won from F on April 1, 2016 from F, there exists an agreement between the Defendant and F as to the resale agreement of sale rights.
However, the judgment of the court below which acquitted the defendant of the facts charged of this case on the ground that the defendant could not recognize the fact that he reselled the sale right of this case within the period of restriction on resale right.
2. Determination
A. Article 41-2(1)2 of the former Housing Act (amended by Act No. 13687, Dec. 29, 2015) provides that “No person shall resell (including sale, donation, and all other acts accompanying a change of rights, but excluding inheritance) the housing subject to sale and the status of being selected as the occupant of such housing, unless the period prescribed by Presidential Decree elapses.”
In this case, the term “re-sale” refers to a "legal act," the purpose of which is to change the rights, qualifications, and status of an occupant. In order to punish pursuant to Article 96 Subparag. 2 of the same Act on the ground that the status of being selected as an occupant within the period of restriction on resale was resold in violation of the above provision, the resale contract was actually concluded as a result of a specific agreement on the essential or important matters within the period of
If possible, whether the contract has been prepared formally, or whether the implementation of the resale contract has been completed, does not affect the establishment of the crime.
B. In light of the foregoing legal doctrine, in full view of the following circumstances acknowledged by the evidence duly adopted and examined by the lower court, it is reasonable to view that a sales contract was concluded on April 1, 2016, within the period of restriction on the resale of the right to sell in lots between the Defendant and F, with the specific intent on the essential or important matters of the contract.