The case holding that it is difficult to conclude that the Defendants were not guilty of the above provisional registration on the ground that the Defendants’ establishment of a provisional registration on the real estate owned by the clans Gap was false, since there was a dispute over the real estate owned by the clans Eul before that time, and there was dispute about the validity of the special general meeting held by the other party while denying the validity of the special meeting held by the other party, and it was difficult to understand the validity of the special general meeting held by Gap at the time of the special meeting; the Defendants decided to ratification the above resolution at a separate general meeting of clan held after the provisional registration was resolved against the Defendants; the Defendants’ establishment of a provisional registration on the real estate owned by the clans Gap was aimed at preventing Eul from arbitrarily disposing of the real estate in the course of internal dispute with Eul, etc. in addition to securing the Defendants’ claims against the clans; although the Defendants filed a lawsuit seeking confirmation of invalidity of the special meeting resolution held by Eul et al., but lost the judgment, in reality, it was difficult to conclude that the above Defendants did not know that the resolution was legitimate at the general meeting.

The defendants are the clan members of the △△△△△ clan (hereinafter referred to as “the clan”).

From around 2012, the Defendants had settled disputes with Nonindicted 1 and Nonindicted 2 regarding the real estate owned by the clans. At the special meeting of the clan called on May 11, 2014, Defendant 1 was elected as the president of the clans. Defendant 2 and Defendant 3 was appointed as the general secretary. However, at the special meeting of the clan called on April 12, 2015, the Defendants were dismissed from office for the president and the general secretary of the clans, and Nonindicted 4 and the general secretary were newly appointed as the representative of the clans. The Defendants denied the effect of the resolution of the special meeting of the clans as of April 12, 2015, denied the validity of the resolution of the special meeting of the clans, set the provisional registration for the real estate owned by Defendant 2 and Defendant 3 who lent money to the clans for the purpose of the clans business.

Where it is intended to hold a clan meeting, the legitimate convening authority shall convene a meeting, notify all the members of the clan who can be notified of the convocation of the general meeting, and since the property owned by the clan belongs to the collective ownership of the members of the clan, the management and disposition of the clan first, if any, shall comply with the regulations of the clan, and if there is no regulations of the clan regarding such affairs, it shall

The Defendants, without following lawful procedures for convening a clan meeting on June 14, 2015, prepared a resolution stating that Defendant 3 shall hold an extraordinary general meeting of ○○○○C △△△△△△△ branch in the cafeteria of Ansan-si ( Address 1 omitted) in which only 34 members of the clan attended, and that Defendant 1, who was dismissed from the president of the clan on June 14, 2015, establishes a provisional registration for the land ( Address 2 omitted), which is the property owned by the clan, and Defendant 2, for the land ( Address 2 omitted) which is the property owned by the clan. Since the above resolution of the clan on June 14, 2015, which was an extraordinary general meeting convened by Defendant 1, who was dismissed from the president of the

(a) Crimes committed on June 30, 2015;

around June 30, 2015, Defendant 1 and Defendant 2 had a staff-in-charge enter into a registry office of Suwon District Court located in Ansan-dong, Ansan-si, Sungsung-si, by using a null and void clan resolution, etc. as mentioned above, so that the transfer of ownership security, which Defendant 2 is a provisional registration authority, is registered on the registry book of the land at Ansan-si, on the ground of the promise to return the substitute of the land from Jun. 28, 2015. At that time, Defendant 1 and Defendant 2 had the above registry office keep the above registry that recorded the falsity.

As a result, the Defendants conspired to make a false report to the public official and had the public official enter false facts in the electronic register, which is a public electronic record, and around that time, had the public official keep the electronic register containing false facts, and exercised it.

(b) The crime committed on August 3, 2015;

around August 3, 2015, Defendant 1 and Defendant 3 had a staff-in-charge enter into a registry of Suwon District Court located in Suwon-si Kimyang-dong with the above circumstances so that the right to claim transfer of ownership can be registered with the provisional registration authority on the ground of the promise to return the substitute goods from June 28, 2015 in the registry of the land ( Address 2 omitted) in Yongsan-si, and then had the said registry keep the above registry that recorded the above insolvency at around that time.

As a result, the Defendants conspired to make a false report to the public official and had the public official enter false facts in the electronic register, which is a public electronic record, and around that time, had the public official keep the electronic register containing false facts, and exercised it.

2. Determination

A. Relevant precedents

The crime of false entry in the original of a notarial deed is established when a public official makes a false report to a public official to enter false facts in the original of a notarial deed. Even if there is any absence or appearance of the matters stated in the original of a notarial deed, if there is any defect falling under the invalidation, such entry shall be deemed to fall under such false entry (see Supreme Court Decision 2005Do4910, Aug. 25, 2005). However, in cases where a non-corporate group applies for registration of change of a registered titleholder pursuant to a resolution of the general meeting of the non-corporate group under the Civil Act, whether such act constitutes an act which causes false entry in the original of a notarial deed, barring any special circumstance, it is reasonable to determine whether the resolution was made at the general meeting in reality regardless of the legal effect of the resolution of the general meeting (see Supreme Court Decisions 2004Do3584, Oct. 15, 2004; 208Do755, Nov. 13, 2008).

B. Facts of recognition

According to the evidence duly adopted and examined by this Court, the following facts are recognized.

① From around 2012, the Defendants of the clan have been disputing Nonindicted Party 1 and Nonindicted Party 2 on the real estate owned by the clan, and Defendant 1 was elected as the president of the clan at the special meeting of the clan called on May 11, 2014, and Defendant 2 was appointed as the secretary general in charge of finance and advisory affairs, and Defendant 3 was appointed as the secretary general.

② However, at the special meeting of the clan called on April 12, 2015, Defendant 1 was dismissed from office by the president of the clan, and Nonindicted 2 was newly appointed as the representative of the clan, Nonindicted 3, 4, and 2 as the general secretary of the clan.

③ Nonindicted 1, as the representative of the clan president, sent a notice for convening an extraordinary general meeting to 95 members, and held an extraordinary general meeting on May 2, 2015, and Nonindicted 6 was appointed as the representative of the clan, Nonindicted 1, Nonindicted 5, and Nonindicted 6 as the auditor at the said extraordinary general meeting.

④ From June 14, 2015, the Defendants denied the validity of the resolution of the special meeting of the clan on April 12, 2015, who dismissed Defendant 1 from Defendant 1 by the president of the clan, called a new special meeting of the clan, and decided to set the provisional registration of the real estate owned by the clan to Defendant 2 and Defendant 3, while the 33 members attend the special meeting of the clan, as described in the facts charged.

⑤ Since then, Nonindicted 7 held an extraordinary general meeting as of January 10, 2016 and passed a resolution to ratification the resolution of the extraordinary general meeting as of June 14, 2015.

④ On the other hand, Nonindicted Party 1 held an extraordinary general meeting as of January 17, 2016 and passed a resolution to restore the provisional registration made in the name of Defendant 3 and Defendant 2, as indicated in the facts charged, to the original state in accordance with the aforementioned resolution on June 14, 2015.

7) Defendant 2 filed a lawsuit seeking confirmation of invalidity of the resolution, such as the extraordinary general meeting of April 12, 2015, which was convened by Nonindicted Party 1, led by Nonindicted Party 1, and the extraordinary meeting of January 17, 2016 (the Suwon District Court Decision 2015Gahap9136) against the clan, but the judgment was finalized on April 13, 2017.

In the above judgment, the above court determined that the defect in the convening procedure was invalid in relation to the extraordinary general meeting of May 11, 2014 and the extraordinary general meeting of January 10, 2016, led by the defendant.

C. Determination

In light of the following circumstances revealed by the evidence duly adopted and examined by this court, insofar as there was a resolution to establish a provisional registration on real estate in the name of a clan with Defendant 3 and Defendant 2, as stated in the facts charged at the special meeting of the clan dated June 14, 2015, it is difficult to readily conclude that the above registration was false, and it is insufficient to acknowledge that the Defendants knew that the above resolution was lawful and valid at the time of the above provisional registration, and there is no other evidence to acknowledge otherwise.

① Since around 2012, the Defendants had a dispute with Nonindicted 1, Nonindicted 2, etc. regarding the clans owned by the Defendant, and had been challenged while denying the validity of the extraordinary general meeting held by the other party. Therefore, it is difficult to understand the validity of the extraordinary general meeting held by each party at the time of the extraordinary general meeting.

② Defendant 1 was elected as the president of the clan of May 11, 2014. A decision was made to provisionally register the real estate recorded in the facts charged at the special clan of June 14, 2015, and Defendant 2 and Defendant 3 was made on January 10, 2016 at the special clan of January 14, 2016. The said resolution was made to ratification the resolution of the special clan of June 14, 2015.

③ As stated in the facts charged, the Defendants’ establishment of provisional registration on real estate in the name of a clan was aimed at preventing Nonindicted 1, etc. from arbitrarily disposing of the real estate in the course of internal dispute with Nonindicted 1, etc. in addition to securing the claims against the clans of Defendants 2 and 3.

④ Although the Defendants filed a lawsuit seeking confirmation of invalidity of the resolution of an extraordinary general meeting held by Nonindicted 1, etc. and rejected the lawsuit, the Defendants held the extraordinary general meeting of a clan on January 7, 2018 with the permission to convene the extraordinary general meeting after the judgment of loss became final and conclusive. Nonindicted 1 was dismissed from the president of the said extraordinary general meeting, Defendant 3 was appointed as the general secretary and Defendant 2 as the financial secretary.

3. Conclusion

Since all of the facts charged in this case constitute a case where there is no proof of crime, the court below rendered a verdict of innocence against the Defendants under the latter part of Article 325 of the Criminal Procedure Act, but the summary of the judgment of innocence under the proviso of Article 58(2) of the Criminal Act is not publicly announced

Judges Park So-young