A defendant shall be punished by imprisonment for not more than ten months.

Number of detention days before sentencing of the original judgment shall be 86 days included in the above sentence.

A. misunderstanding of facts or misunderstanding of legal principles

① In light of the fact that 9.5 billion won, the successful bid price of the instant real estate determined at the auction procedure without a concrete deliberation, was calculated as unjust enrichment all as 2.355 billion won, which is the difference between the sale price and 3.5 billion won, the lower court determined as to the market price of the instant real estate. However, there were many factors to increase the market price of the instant real estate, such as construction of the World Cup in the vicinity, and around that time, the lower court erred in deeming the value of the instant real estate as 9.5 million won, and considering that the Defendant paid 480 million won as capital gains tax, etc., the lower court found the Defendant guilty of having committed an unfair conduct under Article 104 of the Civil Act, in view of the fact that the actual amount of profit of the Defendant did not exceed 3.4 times the actual amount of profit in order to constitute an unfair conduct under Article 104 of the Civil Act, and thus, the lower court did not err by misapprehending the legal doctrine as to the Defendant’s sale of the instant real estate under the name.

B. Unreasonable sentencing

The sentence of the court below that sentenced the defendant for 10 months of imprisonment is too unreasonable in light of the process of disposing of the real estate of this case without any choice by the defendant, etc. compared to similar cases.

2. Judgment on misconception of facts or misapprehension of legal principles

A. In full view of the evidence duly examined and adopted by the court below, the following facts can be recognized.

(1) The Jung-dong District Housing Association (hereinafter referred to as the "Union-dong District Housing Association") is to promote the project of constructing 449 apartment units on the site of 25-3 and 112 lots of land in Mapo-gu in Seoul, Mapo-gu and 25-3 and 112 lots of land (hereinafter referred to as the "project site") and applied for a construction plan deliberation on August 19, 200. From October 200, it entered into the project site and project review by Hadddd Construction Co., Ltd., a project operator from around 200, and entered the project site and approved the establishment of the housing association on May 222, 2001. From February 6, 2002, it changed the establishment authorization to the Jung-dong District Housing Association on June 30, 2003.

(2) The Defendant had been engaged in real estate brokerage assistance at the real estate brokerage office located in Mapo-gu Seoul Metropolitan Government from around 1984 to around 1998, and thereafter, from November 2001, the Defendant was working as an office worker at the real estate agent office located in Mapo-gu Seoul Metropolitan Government Office of Co-Defendant 1 of the lower judgment.

(3) On October 27, 1999, the Defendant owned the instant real estate located within the instant project site from around around 1995, upon the application for Sodae Life Co., Ltd., a collateral security right holder, filed a decision to commence auction on October 27, 199. At the time, the instant real estate was appraised as KRW 1,03,843,120.

(4) As one of the parties acquiring the right to implement the project from the above Hydrid Construction around November 2001, the public sector presented 1.2 billion won as the purchase price of the instant real estate based on the provisional contract between the defendant and the cooperative, which was the data received from the Hydrid Construction, while negotiating with the defendant around January 2002, when negotiating with the land owners, but the public sector proposed 1.2 billion won as the purchase price of the instant real estate, however, when the defendant demanded 200 million won more and was granted a successful bid of 9.5 billion won to Kim Jong-Un on March 7, 2002, the public sector presented 1.2 billion won to Kim Jong-Un.

(5) On the other hand, around January 2002, the Defendant offered that, in the process of auction on one’s own real estate, co-defendant 2 and 1 of the lower court made an investment of KRW 500 million, the auction may be cancelled and the co-defendant 2 of the lower court made an identical offer to Co-defendant 3 of the lower court, a high school co-defendant 2 of the lower court, and obtained the consent from Co-defendant 2, 1, and 3 of the lower court, and the profits therefrom shall be distributed in 22%, respectively.

(6) On March 14, 2002, the Defendant completed the registration of ownership transfer in the name of Co-Defendant 3 and 2 with respect to the instant real estate, and revoked the decision to commence auction on March 29, 2002 by receiving monetary support from Co-Defendant 2, 3, and 1 of the lower court, repaying the collateral and cancelling the right to collateral security.

(7) As the above ownership transfer took place, the public co-defendant 2 and 3 of the lower judgment attempted to negotiate through several telephone conversationss and interviews with one another, asking for the imminent situation of the association which is required to obtain business approval from December 2002 to Co-defendant 2 and 3 of the lower judgment. However, the negotiations continued on the wind that Co-defendant 2 of the lower court presented a large amount of KRW 3.6 billion to KRW 3.9 billion.

(8) On the other hand, the Mapo-gu Office set the time limit for securing the project site at the end of January 2003 by providing several extensions, and notified that the office would return the project plan submitted by the partnership if it fails to secure the project site by May 31, 2003. On the other hand, upon the rejection of the approval of the project plan, the association shall undergo a deliberation on the construction completed in 2002, and upon the re-deliberation of the construction plan, the association shall undergo a deliberation on the construction that was completed in 202, and the number of damages to the association due to the reduction of the floor area ratio due to the amendment of the law, so it was significantly impossible

(9) Ultimately, on April 24, 2003, the Cooperative purchased the instant real estate at KRW 3.26 billion in consideration of the emergency situation as above.

(10) In the auction procedure, the official announcement in the year 199, which was at the time of the appraisal of the instant real estate, is KRW 952,00 per square meter, and the official announcement in the year 2003, where the Defendant sold the instant real estate, is KRW 1,350,000 per square meter.

(b) Markets:

(1) Market price of the instant real estate

According to the facts established above, the market price at the time of selling the pertinent real estate shall be 1.418 (Public Notice in 2003) won (the appraised value in the year 1999 1,03, 843, 120 won x the rate of increase in the officially announced land price x 1.418 (Public Notice in 2003) which is the amount obtained by multiplying the appraised value at the above auction procedure by the increase

It is reasonable to see that land price 1,350,00 ± officially announced price in 1999 ± 952,000 won = 1,465,989,54). In addition, according to the prosecutor's statement by Co-Defendant 2 in the lower court, the appraisal value at the time of the establishment of a collateral security right and the receipt of a loan for the instant real estate on April 12, 2002 is 1.2 billion won, the above amount is deemed as securing objectivity even if compared to this, since the appraisal value at the time of the establishment of a collateral security right and the receiving a loan on April 12, 2002 is 1.2 billion won. Therefore, the lower court's judgment that deemed the successful bid price at the time of

(2) Whether there is a substantial and unfair interest

As seen above, the market price of the real estate in this case at the time of sale is KRW 1.47 billion, and the price sold by the defendant is KRW 3.26 billion. Thus, the reason for appeal is that the sale price remains two times the market price and does not exceed three times the market price. However, in determining whether the sale price is a substantial unfair profit, it is not simply determined by the rate between the market price and profits, but the absolute amount of profit itself should be taken into account ( even if the sale price is double the market price, the determination of whether the sale price of the real estate equivalent to KRW 1.0 million and the sale of the real estate equivalent to KRW 1.0 billion is able to change from the sale price to the sale price of KRW 2 billion, and the sale price in this case is above KRW 2.36 billion in the market price, KRW 1.66 billion in the market price, KRW 1.4 billion in the value-added tax assessment, and KRW 6.4 billion in the investigation records, and KRW 7.4 billion in the market price.

(3) Whether the defendant was guilty or not

In full view of the motive and background leading up to finding the instant real estate that had already been granted a successful bid approval together with the accomplices, the developments and process leading up to selling the instant real estate to the partnership, selling price, distribution of profits among the accomplices, relationship with the accomplices, and the Defendant’s career, etc., it is reasonable to view that the Defendant: (a) upon knowing the circumstances in which the association intended to construct an apartment complex in the instant real estate, raised funds from the accomplices to cancel the auction by raising funds from the instant real estate that had already been granted a decision to grant a successful bid approval; (b) conspired to invite the partnership to sell the real estate in return for selling it to the partnership; and (c) eventually, (d) by taking advantage of the imminent situation of the association at which the return of the application for the approval of the project is at risk, the Defendant is sufficiently aware of the criminal intent; and (b) as long as the Defendant committed the instant crime in collusion with the accomplices, it does not change the Defendant’s

(4) The theory of lawsuit

As seen above, the decision of the court below which found the defendant guilty of the crime of unjust enrichment is justifiable, but the court below erred in calculating the amount of profit, and there is a ground for appeal pointing this out, and therefore the decision of the court below is no longer maintained in this regard.

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, 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.

Criminal facts and summary of evidence

From among the facts constituting the crime of the judgment below, "the above building was sold to the above building with a significantly low price of KRW 95 billion, which is 3.26 billion, the successful bid price of KRW 2.5 billion, and the above building acquired an unfair benefit equivalent to KRW 2.55 billion, which is the difference," which shall be referred to "the above building was sold to the above building at KRW 1.477 billion, the market price of which is 1.66 billion, which is remarkably higher than KRW 3.6 billion, and thereby acquiring an unfair benefit equivalent to KRW 1.63 billion, which is the difference, by selling the above building at the above building at KRW 3.1 billion (the value-added tax limit amount is 3.1 billion), it is identical to the description of each corresponding column of the judgment below, and thus, it is cited as it is in accordance with Article 369 of the Criminal Procedure Act."

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

The point of unjust enrichment in the judgment: Articles 349(1) and 30 (Selection of Imprisonment) of the Criminal Act

1. Calculation of days of detention;

Article 57 of the Criminal Act

Reasons for sentencing

Considering the nature of the crime of this case and the degree of damage, the motive and background leading up to the crime of this case, the situation before and after the crime of this case, and other various matters stipulated in Article 51 of the Criminal Act, which are the conditions for sentencing, such as the defendant's age, character and character, environment, etc., the sentence of the court below cannot be deemed to be unfair because it is too unreasonable, since the sentence of the court below is too too unreasonable, since the defendant's punishment cannot be deemed to be imposed.

Judges Jeong Young-chul (Presiding Judge)