The imprisonment with prison labor for Defendant 1 shall be one year and two months, and the imprisonment with prison labor for Defendant 2 shall be one year, and the imprisonment with prison labor for Defendant 3 shall be eight months.

However, with respect to the defendant 2 and 3, the execution of each of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

Of the facts charged in this case, Defendant 1 and 2 violated the Act on the Special Measures for the Registration of Real Estate as stated in Nos. 1, 2, 3, 5, 24, 39, 46, 49 through 54, 59, and 62 in the annexed crime list I among the facts charged in this case, and the fact that Defendant 1 and 2 violated the Act on the Special Measures for the Registration of Real Estate under the Act on the Registration of Real Estate as stated in No. 1, 2, 3, 5, 171 through 178 in the annexed crime list No. 1, 2, 5, 24, 25, 39, 40, 46, 49 through 54, 59, and 171 through 178 among the annexed crime list I against Defendant 3 is not guilty.

A. misunderstanding of facts and misapprehension of legal principles

1) Defendants

With respect to the violation of the Act on Special Measures for the Registration of Real Estate, Defendant 1 entered into a contract for the sale by proxy (the so-called "purchase by proxy contract") with the owner to pay a certain amount of money out of the sale by proxy to the owner and receive the remaining amount of money as commission, and there was no unregistered resale after purchasing loan. Accordingly, Defendant 2, an employee of Defendant 1, did not participate in the resale, but did not violate the obligation to file an application for the registration of ownership transfer in the name of the buyer.

2) Defendant 1 and 2

With respect to the violation of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act, Defendants 1 and 2 do not resell unregistered real estate, but engage in sales agency business. Thus, in collusion with persons other than licensed real estate agents, they did not engage in brokerage business without registration of establishment of a real estate brokerage office, or conducted a prohibited act of brokers, etc. by arranging sales of unregistered real estate in collusion

3) Defendant 2

A) The Defendant cannot be deemed to have conspiredd to commit each of the instant crimes on the ground that Co-Defendant 1’s co-Defendant 1’s assistance in work as a co-defendant 1 and there was no perception that the said Co-

B) As to the violation of the Act on Special Measures for the Registration of Real Estate, there was no purpose in the instant case to avoid taxation or to obtain market price gains.

C) As to the fraudulent entry in the authentic copy of a notarial deed and its exercise, it cannot be said that it was recorded in the registry as it was reported by the Defendant to the competent authorities.

B. Unreasonable sentencing

Each sentence sentenced by the court below against the defendants (defendant 1: 4 years and 6 months of imprisonment; 2 years of imprisonment; 3 years of suspended sentence for one year of imprisonment) is too unreasonable.

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

A. Determination as to the violation of the Act on Special Measures for the Registration of Real Estate

1) The summary of this part of the facts charged is as follows.

Defendant 1 and 2 conspired on December 22, 2008, the real estate office located in the territory of the Nam-gu Incheon Metropolitan City (hereinafter address 1 omitted) and the actual owner of 9 households in Nam-gu, Incheon (hereinafter address 1 omitted) purchased the above loan amounting to KRW 850 million from Nonindicted 4, who purchased the above loan amounting to KRW 850 million through the above loan amounting to KRW 950 million again. The above loan amount was entered into a contract with the third party purchaser who resells the defendants to the unit of household immediately complete the registration of ownership transfer. On December 22, 2008, the above loan amounting to KRW 401 among the above loan amounts to KRW 120 million from the office of the non-indicted 5 to the non-indicted 36 and completed the registration of ownership transfer within the name of the non-indicted 36 days after receiving the purchase amount from the non-indicted 6 on December 30, 2008, immediately completed the registration of ownership transfer from the above non-indicted 364.

In addition, Defendant 1 and Defendant 2 conspired with each other from December 30, 208 to June 15, 2010, they did not file an application for the registration of transfer of ownership of a contract to be concluded first after the resale of the building of 194 households in total, as described in the attached Table I of the Crimes List I, for the purpose of evading the tax imposition or obtaining benefits from the price fluctuation in the other market prices. Meanwhile, Defendant 3 conspired with Defendant 1, and did not file an application for the registration of transfer of ownership of a contract to be concluded first after the resale of the building of 129 households in total from July 23, 2009 to June 15, 2010, respectively, as described in the attached Table I of the Crimes List I.

2) The judgment of the court below

The court below found Defendant 1 and 2 guilty of this part of the charges on the ground that, in light of the transaction that, in essence, the sale by proxy should be conducted on another person's business, and the legal effect of the Defendants' act should belong to the owner. Defendant 1 and 2, after acquiring the building from the owner, they decided solely on the terms of sale, such as the price of the loan, and the owner could not sell some of the loan units separately after concluding the contract with the Defendants. In light of the transaction that the Defendants paid the full amount of the loan units to the owner, regardless of whether the Defendants sold the entire loan units, the Defendants acquired the right to dispose of the loan units from the owner. Thus, it cannot be deemed as being entrusted with the sale by proxy, and it shall be deemed that they purchased and sold the loan units. The time and method of the sale by proxy is somewhat different from the general real estate sales contract, or that the Defendants did not intend to own the loan for a long time or to actually reside, it cannot be deemed as the essential part of the sales contract, and thus,

3) The judgment of this Court

A) Requirements for establishing a violation of the Act on Special Measures for the Registration of Real Estate

Article 8 Subparag. 1 of the Act on Special Measures for the Registration of Real Estate (hereinafter referred to as the “Act”) provides that “any person who violates the provisions of Article 2 (2) or (3) with the intention of evading taxation, obtaining profits arising from price fluctuation between different market values, or evading restrictions under the Acts and subordinate statutes regulating changes in rights, such as ownership, shall be punished by imprisonment for not more than three years or by a fine not exceeding 100 million won.” Article 2 (3) of the Act provides that “Where a person who has entered into a contract with the content to acquire the ownership of real estate enters into a new contract with a third party on the real estate before the date prescribed in any subparagraph of paragraph (1) of this Article enters into the contract with the third party, the registration of ownership transfer shall be applied for within 60 days after the date on which the first contract becomes effective or 20 days after the date on which the initial contract becomes effective.” Article 8 Subparag. 1 of the Act on Special Measures for the Registration of Real Estate and Article 2 (3) of the Act provides that “any person who has entered into a contract with the second third party to acquire ownership transfer or transfer, without the next contract.”

On the other hand, where a sales agency contract is entered into in a manner that sets forth a certain amount of money out of the sales price as a commission to the owner in the course of carrying out the sales agency, even if the sales agency contract cannot be deemed to be uniformly illegal, such type of sales agency contract shall not be exempt from criminal liability in cases where the sales agent is "a person who entered into a contract that covers transfer of ownership of real estate" in light of the legislative intent of the Act on Special Measures for the Registration of Real Estate in order to establish a sound real estate transaction order by prohibiting a simple transaction, and is "a person who commits a crime violating Article 8 subparagraph 1 or Article 2 (3) of the Act on Special Measures for the Registration of Real Estate."

Therefore, the so-called so-called so-called "purchase-type parcelling-out contract" should be determined by comprehensively taking into account the details and contents of the contract concluded between the parties, the time and method of payment, the methods of disposal in the case of unsold housing unit, and the details of the purchaser's specification.

On December 30, 2008 to June 15, 2010, the Defendant: (a) performed a transaction of lending from around December 30, 2008 to about 194 households; (b) there exists no agreement between Defendant 1 and the owner of the building who is the other party; and (c) there is a case where the sales agency is again entrusted by another sales agency; and (d) there is also a case where another sales agency is re-entrusted by another sales agency, whether the Defendant constitutes “a person who entered into a contract with the content of acquiring the ownership of real estate,” which is the subject of a crime of violating Article 8 subparag. 1 and 2(3) of the Act on Special Measures for the Registration of Real Estate.

B) The portion found guilty

The key issue is whether Defendant 1 entered into a sales agency contract with Defendant 1 to sell in lots or to sell in lots. The following parts can be acknowledged as a sales contract, not a sales agency contract, based on the seller's testimony, etc. even if there is a disposal document contract, or even if there is no contract, if there is a sales agency contract, or if there is no contract, it can be acknowledged as a sales agency contract based on the seller's testimony, etc.

이에 따라 살피건대, 원심에서 적법하게 채택한 증거들에 의하여 인정되는 여러 사정, 즉 ① 원심 범죄일람표 I 중 8차 (건물명 1 생략), 9차 (건물명 2 생략), 10차 (건물명 3 생략), 11차 (건물명 4 생략), 12차 (건물명 5 생략), 13차 (건물명 6 생략), 21차 (건물명 7 생략), 25차 (건물명 8 생략), 27차 (건물명 9 생략), 28차 (건물명 10 생략)의 경우에는 각 빌라별로 빌라 전체에 관하여 건축주와 피고인 1 사이에 부동문자로 인쇄된 부동산매매계약서 양식을 이용한 부동산매매계약서가 작성되어 있고, 거기에는 피고인 1이 매수인으로 기재되어 있으며(8차 (건물명 1 생략)과 21차 (건물명 7 생략)의 경우 피고인 1이 누나인 공소외 8의 명의를 빌려 계약서를 작성하기는 하였으나, 거래의 경위, 계약 당사자의 의사를 종합하면 위 계약의 당사자는 피고인 1이라고 확정할 수 있으므로 위 피고인이 ‘소유권이전을 내용으로 하는 계약을 체결한 자’라고 할 것이고, 계약 자체가 무효가 되는 경우에 해당한다고는 보이지 아니한다), 그 각 매매계약서의 내용도 피고인 1이 빌라 건물 전체를 대금을 얼마로 정하여 매수하면서 계약시 계약금으로 일부 금원을 지급하고 그 후의 어느 특정 일자를 잔금 지급기일로 정하여 그 기일에 매매대금 잔액 전액을 일시에 지급한다는 내용으로서 일반 매매계약과 다를 것이 없고, 그 잔금 지급이 피고인이 빌라의 각 세대를 제3자에게 얼마나 분양(매매)하는지 여부에 상관없이 전액을 약정일자에 지급해야 하는 것이어서 계약의 실질이 매매계약에 해당하는 점[다만 그 중 13차 (건물명 6 생략), 25차 (건물명 8 생략)의 경우 매매계약서의 특약사항 중에 ‘본 계약은 전속분양대행계약이다’라는 문구가 기재되어 있기는 하나, 이러한 문구에도 불구하고 그 계약서의 내용은 위와 같이 피고인 1이 매수인으로서 계약시 계약금으로 일부를 지급하고 약정한 특정 잔금지급기일에 잔금 전부를 일시에 지급한다는 것이어서 이 경우도 그 계약의 실질은 부동산매매계약에 해당한다고 볼 것이다(증거기록 제3424, 5798쪽)], ② 위 21차 (건물명 7 생략), 27차 (건물명 9 생략), 28차 (건물명 10 생략)의 경우에는 매매계약서에 ‘매도인은 잔금 전 분양 및 매매를 할 수 있도록 위임하여 준다’는 취지의 특약사항이 존재하는데, 이는 원칙적으로 매매계약의 경우 매수인이 잔금을 전부 지급함과 동시에 부동산 소유권이전등기서류를 교부받아 그 처분권을 갖게 되는 것이지만, 이러한 원칙과 달리 매수인인 피고인 1이 매도인에게 잔금을 완납하기 이전에도 제3자에게 빌라의 각 세대를 전매할 수 있도록 허용해 준다는 예외 조항으로 볼 수 있고, 만약 피고인들의 주장과 같이 매매계약이 아닌 분양대행계약이라면 분양대행자가 잔금 지급 이전에 제3자에게 분양할 수 있다고 하는 특약조항 자체가 들어갈 필요가 없다고 할 것인 점(증거기록 제3675, 5637, 4087쪽), ③ 14차 (건물명 11 생략)의 경우 매매계약서가 존재하지 아니하나 원심 증인 공소외 9가 ‘2009. 8.경 피고인 1에게 매도하였고 계약서에 매수인을 피고인 1 외 1인으로 기재하였으며 다른 사람에게 분양 혹은 전매를 하지 못하더라도 정해진 매매대금을 완납해야 하는 계약이었다’고 진술하였고, 16차 (건물명 12 생략)의 경우도 매매계약서는 존재하지 아니하나 원심 증인 공소외 10이 ‘2009. 7.경 공소외 11과 함께 매수한 빌라 4세대를 2009. 8.경 피고인 1에게 실제로 매도하였고 잔금을 정해진 일자에 받았으며 피고인 1이 아닌 다른 사람에게 소유권이전등기가 마쳐져 갈등이 있었다’고 명확하게 진술한 점(공판기록 제404, 521쪽), ④ 18차 (건물명 13 생략), 19차 (건물명 14 생략), 20차 (건물명 15 생략)의 경우 피고인에 대한 채권자인 공소외 12 명의로 매매계약서가 작성되었는데, 이는 피고인 1이 건축주와 매매계약을 체결하면서 공소외 12의 명의를 빌려 체결한 것으로서, 계약의 당사자는 피고인 1로 확정된다고 볼 수 있는 점(공판기록 제436쪽), ⑤ 22차 (건물명 16 생략)의 경우 피고인 1이 분양업자 공소외 13과 사이에 ‘분양(매매)약정서’를 작성하였는바, 피고인 1이 매수인으로 적시되어 있고, 잔금을 특정한 기일에 위 공소외 13에게 지급하기로 한 점(증거기록 제3712쪽) 등을 종합하여 보면, 원심 판시 별지 범죄일람표 I 중 8차 (건물명 1 생략), 9차 (건물명 2 생략), 10차 (건물명 3 생략), 11차 (건물명 4 생략), 12차 (건물명 5 생략), 13차 (건물명 6 생략), 14차 (건물명 11 생략), 16차 (건물명 12 생략), 18차 (건물명 13 생략), 19차 (건물명 14 생략), 20차 (건물명 15 생략), 21차 (건물명 7 생략), 22차 (건물명 16 생략), 25차 (건물명 8 생략), 27차 (건물명 9 생략), 28차 (건물명 10 생략)의 경우, 매수 후 미등기 전매로 보아 이 부분 공소사실을 유죄로 인정한 원심의 판단은 정당한 것으로 수긍이 된다.

C) The portion not guilty

The burden of proof for the criminal facts charged in a criminal trial is to be borne by the prosecutor, and the recognition of the criminal facts must be proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). If the defendant did not have any such proof, even if there is a doubt about the defendant's guilt, the defendant should be acquitted even if he/she is suspected of guilt. Since there is no written contract for not guilty as a disposal document, the following part should be proved to be purchased by other evidence, such as the statement of the parties to the contract, and there is no evidence to acknowledge that it is a sales contract because the parties to the contract stated that it

In other words, there is no contract which is a disposal document contract. The evidence duly adopted and examined by the court below revealed that ① among the list of crimes in the court below, 3 (name 17 omitted), 4 (name 18 omitted), 5 (name 19 omitted), 6 (name 20 omitted), 17 (name 21 omitted), etc., the original seller, Nonindicted 4, 14, 15, etc. are the sales agency for the defendant 1, and the defendant 1 was the sales agency for the defendant 4, 14, 15 was the place where the defendant 1 was the sales agency for the defendant 4, 17 (name 568, 744, 653 of the trial record), 2, 3, 47, 47, 4, and 15 were all the witness of the court below to be the sales agency for the defendant 1 (name 2, 47, 47, 653 of the trial record).

Therefore, there is no evidence to acknowledge that in case of the above 3th (name 17 omitted), 4th (name 18 omitted), 5th (name 19 omitted), 6th (name 20 omitted), 7th (name 21 omitted), 15th (name 22 omitted), 23 (name 23 omitted), 24th (name 23 omitted), 26th (name 24 omitted), and 26th (name 14 omitted) (name 1 through 27th, 89 through 96, 143 through 162, 171 through 178), Defendant 1 constitutes a person who has entered into a contract with the purport of acquiring ownership of real estate.

Therefore, the Defendants’ assertion of misunderstanding of facts is acceptable.

B. Determination as to the violation of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act

1) The summary of this part of the facts charged is as follows.

A) The fact that an unregistered brokerage business is operated

Defendant 1 and 2 conspired, on May 2009, requested brokerage by Non-Party 1, who did not obtain a certificate of qualification of real estate agent or have registered the establishment of a real estate brokerage office in the office of the Seocho-si (hereinafter address 2 omitted) at the Seocho-si (hereinafter address 2 omitted) on the condition that the third purchaser of the unregistered resale to be handled by the Defendants shall pay KRW 3 million per household under the pretext of the brokerage commission to the third purchaser, and received the consent from Non-Party 1.

Accordingly, around May 30, 2009, Nonindicted Party 1 arranged the Defendants for Nonindicted Party 25 to purchase the above (name 1 omitted) No. 501 (name 1 omitted), and the Defendants paid KRW 2,868,000 to Nonindicted Party 1 as a brokerage commission.

In addition, the Defendants conspired with Nonindicted Party 1, etc., and run the brokerage business without registering the establishment of a real estate brokerage office from May 30, 2009 to May 3, 2010, as described in Nos. 1 to 25, 32-45, and 59-62 in the attached Table III.

(b)the violation of prohibited acts such as a broker;

around August 2009, Defendant 1 and 2 conspired and requested brokerage in the Gangnam-gu Seoul Metropolitan Government Office of the ○○○○○○○ Licensed Real Estate Agent (hereinafter “○○○○○ Real Estate Agent Office”) on the condition that the said real estate brokerage office is registered and brokerage business is provided to Nonindicted 2 and his brokerage assistant Nonindicted 19 on the condition that “three million won per household shall be paid for the unregistered resale goods under the pretext of the brokerage commission by arranging a third party purchaser on the unregistered resale goods,” and that they accepted the request.

Accordingly, around October 15, 2009, Non-Indicted 2 and Non-Indicted 19 arranged the Defendants for the third purchaser No. 201 of the above 201 of the loan that the Defendants requested to act as a broker at the Nam-gu Incheon Metropolitan Government (hereinafter address 3 omitted) Nam-gu (hereinafter the name of the building 6 omitted). The Defendants paid KRW 2,868,00 to Non-Indicted 19’s account as the intermediary fee.

In addition, the Defendants conspired with Nonindicted 2 and 19, and caused real estate speculation, such as mediating the sale of real estate for which no registration of ownership preservation or registration of transfer has been made, for the purpose of violating the pertinent statutes, such as tax evasion, etc., as described in Nos. 26-31 and 46-58 of the attached Table III from October 15, 2009 to April 14, 2010, the Defendants violated the prohibited acts of brokers, etc.

2) Determination

The facts charged in this part of the facts charged are that Defendant 1 and 2 conspired with a person other than a licensed real estate agent to engage in brokerage business without registering the establishment of a real estate brokerage office or engaged in a prohibited act by acting as a broker, etc. in collusion with a licensed real estate agent for the sale and purchase of unregistered real estate and thus, the act of resale after purchase is premised on the act of not being registered. The court below found the defendant guilty of this part of the facts charged in this part of the facts charged, but with respect to the portion which found the defendant not guilty on the ground that there is no evidence to acknowledge that the sale was not unregistered after the purchase, the fact of violation of the Business Affairs and Report of Real Estate Transactions Act by the corresponding licensed real estate agent is also deemed not guilty. The sales agent's business of buying and selling, exchanging, leasing, or arranging the act of acquisition, loss, or modification of other rights between the parties to a transaction with respect to the business of buying and selling agency and the object of brokerage (Supreme Court Decisions 98Do1914 delivered on July 23, 1999>

Therefore, the portion of the judgment of not guilty as above, which falls under the third (name 17 omitted), fourth (name 18 omitted), fifth (name 19 omitted), sixth (name 20 omitted), seventh (name 21 omitted), 15 (name 22 omitted), 23 (name 23 omitted), 24 (name 23 omitted), 26 (name 24 omitted), 26 (name 14 omitted), among the part of the judgment of the court below's list III, the portion of the crime Nos. 1,2,3,5, 24, 25, 39, 40, 46, 49 through 54, 59, and 62.

C. Determination on the remainder of Defendant 2’s assertion

In light of the relationship between Defendant 2 and Defendant 1, the period when Defendant 2 works together with Defendant 1, and the contents of his duties, etc., Defendant 2 cannot be deemed as having no criminal intent to commit the crime of this case. Moreover, the fact that Defendant 1 did not pay acquisition tax and registration tax following the registration due to the act of unregistered resale of this case, and Defendant 1 obtained profit from market price cannot be deemed as having no purpose to commit the crime of purpose. As long as the Defendants applied for registration with seal of approval on the sales contract stating the purchase price higher than the actual amount and made contents different from the fact on the register as the original copy of the authentic deed, Defendant 2’s remaining assertion is rejected.

3. Conclusion

Therefore, since the defendants' assertion of mistake of facts has some grounds, the judgment of the court below is reversed under Article 364(6) of the Criminal Procedure Act without examining the argument of unfair sentencing, and it is again decided as follows.

Defendant 1 and 2: Article 8 subparag. 1, Article 2(3) of the Act on Special Measures for the Registration of Real Estate; Article 30 of the Criminal Act (the violation of the duty to apply for the registration of ownership transfer); Articles 228(1), 30 of the Criminal Act (the violation of the duty to make false entry of the original copy of an authentic deed); Articles 229, 228(1), and 30 of the Criminal Act (the violation of the duty to exercise the original copy of an authentic deed); Articles 48 subparag. 1, 9(1) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act; Article 30 of the Criminal Act (the operation of an unregistered brokerage business); Articles 48 subparag. 3, and 33 subparag. 7 of the Business Affairs of Each Licensed Real Estate Agent and Report of Real Estate Transactions; Article 30 of the Criminal Act (the promotion of speculative act of real estate by intermediation of unregistered real estate sale); Article 7(2) of the Act on Registration of Real Estate under Actual Titleholder’s Name; Article 30(3) of the Criminal Act

Defendant 3: Articles 8 subparag. 1 and 2(3) of the Act on Special Measures for the Registration of Real Estate; Article 30 of the Criminal Act (the violation of the duty to apply for the registration of ownership transfer); Articles 228(1) and 30 of the Criminal Act (the violation of the duty to apply for the registration of ownership transfer); Articles 229, 228(1), and 30 of the Criminal Act (the violation of the duty to apply for the registration of ownership transfer); Articles 229,

1. Selection of punishment;

Defendants: Imprisonment Decision

1. Aggravation for concurrent crimes;

Defendants: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act

1. Suspension of execution;

Defendant 2 and 3: Article 62(1) of the Criminal Act

However, Defendant 1 evaded acquisition tax or registration tax due to the transfer of registration, but reported the brokerage business related to the loan resale in 2009 and 2010, and thus, Defendant 2 was detained for about four months as the instant case, and Defendant 2 appears to have participated in the instant crime according to Defendant 1’s instructions. Defendant 3 also was an employee of the certified judicial scrivener office of the instant case, taking into account the following circumstances: (a) the Defendants’ age, character and conduct, environment, means and method of committing the instant crime; and (b) the conditions for sentencing, such as the circumstances after committing the instant crime, are considered.

[Attachment]

Judges Kim Yang-tae (Presiding Judge)