[부동산소유권이전등기등에관한특별조치법위반등피고사건][하집1985(2),312]
The meaning of "a person who has de facto transferred unregistered real estate" under Article 6 (1) of the Act on Special Measures for the Registration, etc. of Ownership Transfer.
The phrase “person who has de facto transferred unregistered real estate” under Article 6(1) of the Act on Special Measures for the Registration, etc. of Ownership Transfer refers only to the de facto transferee and his heir of the unregistered real estate, and the specific successor of the above transferee shall not be included.
Article 6 (1) of the Act on Special Measures for Transfer of Ownership of Real Estate
Defendant
Prosecutor and Defendant
Jeonju District Court (83Gohap113)
Part of the judgment of the court below on the violation of the Act on Special Measures for the Registration, etc. of Ownership Transfer.
The sentence of sentence shall be suspended for the defendant.
The prosecutor's appeal against the crime of false entry in the authentic copy of a notarial deed and the crime of its exercise is dismissed.
The gist of the grounds for appeal by the prosecutor is that the court below's decision which rejected the above evidence without justifiable grounds and acquitted the defendant on the grounds that there is no evidence to find the defendant guilty, despite the fact that the police officers of the non-indicted 1 and 2 were fully able to recognize the original of the notarial deed of this case and the facts charged for the above exercise of the notarial deed of this case against the defendant, but the court below's decision was erroneous as affecting the conclusion of the judgment by misunderstanding the facts contrary to the rules of evidence and misunderstanding the facts against the rules of evidence. The first point of the grounds for appeal by the defendant's defense counsel is that the court below's decision of conviction against the defendant as a violation of the Act on Special Measures for the Transfer of Real Estate Ownership, etc., even though the real estate was owned by the defendant who was legally donated by the defendant from the non-indicted 3, the court below erred by misunderstanding the legal principles of the above law, or misunderstanding the facts, and
Therefore, we first examine whether the above appeal was lodged by the public prosecutor. Since the witness 1 and 2 pointed out the above argument, each statement at the investigation agency and the court below's court below is not the owner of 1,785 square meters of forest land at the time of this case at issue, and he did not know the fact that the deceased non-indicted 4's ownership transfer registration was made in the above forest land for the past 20 years since he died, it was impossible to find that the registration was completed in the name of the defendant with respect to the above forest land was completed on January 1, 1983 and that the defendant filed a complaint against the above non-indicted 9's ownership transfer registration was made in violation of the above 9's name on the premise that the defendant might not be registered in the above forest land under the name of the non-indicted 1 and the above 9's ownership transfer registration was made in violation of the law as to the above 9's possession of the forest land at the time of this case's lawful investigation 3 and 6's statement.
Then, we examine whether the appeal of mistake of facts or misapprehension of legal principles against the defense counsel's appeal, and the person who actually transferred unregistered real estate as stipulated in Article 6 (1) of the Act on Special Measures for the Registration, etc. of Ownership of Real Estate refers only to the actual transferee of the unregistered real estate and his heir, and the specific successor of the above transferee does not include this. As stated in the prosecutor's decision on the grounds of appeal, as long as it is evident that the defendant acquired the real estate of this case from non-indicted 3, his father, around 1974 by donation, around 1974, the defendant is not included in the actual transferee as provided in the above Act. Accordingly, since the defendant cannot register the real estate which is not in conformity with the real right relations, he cannot register it through a simple procedure. Thus, the judgment of the court below which entered the above real estate as if he purchased it on August 7, 1972 from the deceased non-indicted 4 who was the owner on the public register and issued a confirmation shall be justified in the misapprehension of legal principles or misapprehension of legal principles.
Finally, the defendant did not have any prior criminal record prior to the crime of this case, and the defendant intended to register the real estate which had been actually owned for a long time through a simple procedure. Also, considering all other conditions that form the basis for sentencing such as the fact that the crime of this case did not put any property disadvantage to others, the court below's punishment against the defendant is too unreasonable, and therefore, the appeal is justified.
Therefore, pursuant to Article 364 (4) of the Criminal Procedure Act, the prosecutor's appeal against the acquittal portion of the judgment of the court below shall be dismissed, and pursuant to Article 364 (6) of the same Act, the judgment of the court below reversed the conviction portion and the
Since the criminal facts of the defendant recognized as a party member and the evidence related thereto are the same as the timely conviction part of the judgment of the court below, they are quoted in accordance with Article 369 of the Criminal Procedure Act.
The so-called the judgment of the defendant falls under the category of Article 13 (1) 1 of the Act on Special Measures for the Registration, etc. of Ownership of Real Estate, and the decision of the defendant selects a term of imprisonment during a prescribed term of imprisonment and sentence one year to the defendant within the scope of the term of imprisonment, or the defendant must be sentenced to a suspended sentence in consideration of the above circumstances as stated in the reasons for reversal. Thus, the sentence is suspended in accordance with Article 59 of the same Act.
It is so decided as per Disposition for the above reasons.
Judges Giology (Presiding Judge) Order of Merit