[횡령·부동산실권리자명의등기에관한법률위반] 상고[각공2007.7.10.(47),1483]
[1] Whether a crime of violation of Articles 7(2) and 3(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name is an offense (affirmative), and whether a person without status can be an indirect offense of an offense of identity by using a person with status (negative)
[2] The case holding that the crime of violating the Act on the Registration of Real Estate under Actual Titleholder's Name cannot be committed in the form of indirect principal offense using Byung, where Eul, who received a request from Gap for title trust of the real estate owned, was registered under Byung's name without knowledge of the fact, and Eul, who did not register the real estate in its name
[1] The crime of violation of Articles 7(2) and 3(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name is an identification crime where the title trustee registered under his/her name according to the title trust agreement is the principal offender. Since the indirect principal offender under Article 34(1) of the Criminal Act is a type of sole principal offender, barring any special penal provision, a person without status can not be an indirect principal offender by using a person with status.
[2] The case holding that the crime of violating the Act on the Registration of Real Estate under Actual Titleholder's Name shall not be committed in the form of indirect principal offense using Byung where Eul, who received a request from Gap for title trust of the real estate owned, was registered under Byung's name without knowledge of the fact, and Eul, who did not have registered the real estate in its name
[1] Articles 3(1) and 7(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name; Article 34(1) of the Criminal Act / [2] Articles 3(1) and 7(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name; Article 34(1) of the Criminal Act
Defendant
Defendant
Kim Jin Kim
Attorney Ahn Chang-chul
Seoul Western District Court Decision 2005Da1272 decided May 10, 2006
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for six months.
Five days of detention before the pronouncement of the judgment below shall be included in the above sentence.
Of the facts charged in the instant case, the charge of violating the Act on the Registration of Real Estate under Actual Titleholder’s Name is acquitted.
1. Summary of grounds for appeal by the defendant;
In light of various circumstances, such as the circumstances leading to each of the crimes in this case, the sentence of the court below (two months of imprisonment with prison labor for the crimes No. 1 in the judgment of the court below and eight months of imprisonment for the crimes No. 2 in the judgment of the court below) is too unreasonable.
2. Ex officio determination
(a) Alteration of indictment;
Before determining the grounds for appeal by the Defendant, the case was examined ex officio prior to the judgment by the Prosecutor, and the applicable provisions of the Act on the Registration of Real Estate under Actual Titleholder’s Name among the facts charged in the instant case are changed from Article 7(1)2 of the Act on the Registration of Real Estate under Actual Titleholder’s Name to “Article 7(2) of the same Act,” and the applicable provisions of the Act were added to “Article 34(1) of the Criminal Act,” and the application for change of indictment was changed to the subject of the judgment by this court’s permission, so the judgment of the court below is no longer maintained.
B. Determination as to the violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name, which was modified in the trial of the instant facts charged
(1) Summary of this part of the facts charged
Of the facts charged in the instant case, the summary of the violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name, which was changed in the trial in the first instance, is as follows: “The Defendant: (a) requested the creditors to request the title trust in order to protect Nonindicted Party 1’s housing (number omitted) from the creditors in the Seodaemun-gu Seoul, Seodaemun-gu, Seoul, the mother who instructed Nonindicted Party 1 to guarantee the obligation of Nonindicted Party 1’s repayment at the place of the first patrol; and (b) around that time, the Seoul Western District Court received the relevant documents for the registration of ownership transfer from Nonindicted Party 2; and (c) around the 29th day of the same month, issued the documents for the registration of ownership transfer, and registered the real right to the said housing in the name of the title trustee under the title trust agreement by completing the registration of ownership transfer in the name of the Defendant who is the mother or Nonindicted 3, who
(2) The judgment of this Court
According to Articles 7(2) and 3(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, “No person shall register any real right to real estate in the name of the title trustee pursuant to the title trust agreement, and the title trustee and the person who instigates another person to violate the pertinent provisions shall be punished by imprisonment for not more than three years or by a fine not exceeding KRW 100 million.”
However, according to Article 2 subparag. 1 and subparag. 3 of the above Act, the term "title trust agreement" means that "a person who holds, or intends to acquire, the ownership or other real rights to real estate, or a person who actually acquires or intends to acquire, the ownership or other real rights to the real estate (referring to an agreement that the person having the actual right holds or intends to hold the real right to the real estate externally among others, and the registration thereof shall be made under his name; the term "the title trustee" means a person who registers the real right to the real estate of the person having the actual right under his name under his name according to the title trust agreement." The crime of violation of the above Act is a person who has registered his name under his name pursuant to the title trust agreement, and the indirect principal offense as provided in Article 34(1) of the Criminal Act is a sole principal offense, and therefore, it cannot be an indirect principal offense of committing an offense of offense using a person having no status, and thus, the defendant cannot be deemed to have completed the registration under his name, and thus, the defendant cannot be deemed to have committed an indirect offense under the above title or indirect offense under the title agreement with the defendant 3.
Therefore, the charge of violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name among the facts charged in the instant case falls under a case where there is no proof of crime, or where the Defendant is not a crime because he is not in the status of the title trustee of the said house, and thus, the Defendant should be acquitted pursuant to Article 325 of the Criminal Procedure Act.
3. Conclusion
Therefore, the judgment of the court below is reversed ex officio pursuant to Article 364(2) and (6) of the Criminal Procedure Act, and the judgment below is reversed ex officio and it is decided as follows.
The summary of the criminal facts and evidence against the defendant recognized by this court is as follows, and the summary of the evidence is as stated in the corresponding column of the judgment of the court below except for adding "a statement corresponding thereto at the court of first instance" to "a statement at the court of first instance" as follows. Thus, all of them are cited in accordance with Article 369 of the Criminal Procedure Act.
C. Foods
“The Defendant, upon Nonindicted 1’s request from Nonindicted 1 on January 2003, upon receipt of a request from Nonindicted 1, his mother, for the title trust, completed the registration of ownership transfer on the said house under the name of Nonindicted 3, who is the Defendant’s buyer, and kept for Nonindicted 2, on or around January 29, 2003, the Defendant sold the said house to Nonindicted 4 on the purchase price amounting to KRW 95 million, and embezzled it by completing the registration of ownership transfer on the said house under Nonindicted 4’s name on or around August 14, 2003.
1. Relevant legal provisions and the choice of punishment for the crime;
Article 355(1) of the Criminal Act, Selection of Imprisonment
1. Inclusion of days of detention in detention;
Article 57 of the Criminal Act
The amount embezzled by the Defendant is not much than KRW 95 million, and the amount embezzled by the Defendant is deemed to have been repaid to the victim or not agreed with the victim, but the amount actually embezzled by the Defendant is much smaller than the amount written in the indictment after deducting KRW 75 million from the amount of the said house purchase price of KRW 95 million. The details leading up to the instant crime, and other circumstances, such as the Defendant’s age, character and conduct, environment, and criminal records, shall be determined as per the order.
Of the facts charged in the instant case, the summary of the violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name is as described in the above 2.B.(1). As seen in the above 2.B.(2), the facts charged constitute a case where there is no evidence of crime or not a crime, and thus, is acquitted pursuant to Article 325 of the Criminal Procedure Act.
Judges Park Jae-il (Presiding Judge)