In a case where the seller of real estate fails to notify the other party of the fact that the right to collateral security has been agreed upon with regard to the real estate which is the object of sale, whether it constitutes deception of fraud (negative)

The mere fact that an agreement is made with another person to establish and sell a real estate which is the object of sale and purchase of real estate does not necessarily mean that the effect of the real estate sale and purchase agreement or the performance of obligations arising from the sale and purchase agreement would hinder the buyer from realizing his/her rights to the subject matter of sale and purchase (the issue of whether each crime of breach of trust is established against the buyer in relation to the buyer in certain cases by completing the establishment of a mortgage agreement or the establishment of a neighboring mortgage in relation to the other party to the contract). Thus, it cannot be deemed that the seller deceivings the buyer by failing to notify the buyer of such circumstance.

Article 347(1) of the Criminal Act

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo and 1 other, Counsel for plaintiff-appellant)

Defendant

Park Woo-Woo

Attorney Cho Ji-hoon

The defendant shall be innocent.

1. Summary of the facts charged in this case

In fact, on February 12, 199, the Defendant: (a) was to construct a new residential facility on the 14th, 1018-dong 100,000 square meters above that owned by the Defendant on the 2nd, Yangcheon-gu Seoul, and (b) was to sell the said new residential facility on the 8th, 199-dong 100,000,000,000 won to the representative director of the 5th, and (c) was to purchase the said facility on the 5th,000,000,000,000,000,000 won for the above construction on July 25, 2000; and (d) was to sell the forest and fields owned by the Defendant on the 2nd,00,000,000 won of the above 10,000,000 won of the 1st,000,000 won of the forest and fields, and to establish a mortgage on the above 2nd forest land.

2. Determination:

In the course of selling and selling real estate, the seller is obligated to notify the buyer in advance of such circumstances in light of the principle of trust and good faith, if the seller fails to notify the buyer of the specific circumstances concerning the sale and purchase of the real estate, thereby causing interference with the buyer's performance of obligations arising from the sale and purchase, and without notifying the buyer of such circumstances that the buyer would not enter into the sale and purchase contract or would not pay the purchase price if he was notified of such circumstances, and if it is evident in light of the empirical rule that the buyer would not enter into the sale and purchase contract or would not pay the purchase price, then the seller shall be obligated to notify the buyer of such circumstances. However, the seller's failure to notify the buyer of such circumstances constitutes a crime of fraud. However, it cannot be deemed that the seller has a duty to notify the buyer of the fact that there is no influence on legal relations arising from the sale and purchase of the real estate and therefore, it cannot be deemed that the sale and purchase of the real estate was an obstacle to the buyer's performance of obligations arising from the sale and purchase of the real estate.

According to the evidence submitted by the prosecutor, the fact that the defendant entered into a mortgage contract concerning the instant real estate between Gara Construction and Gara Construction before selling the instant real estate, and the fact that the defendant did not notify Kim Yong-Nam of the fact that the above mortgage contract was concluded at the time of the above sales contract. However, as seen above, the defendant did not notify Kim Nam of the fact that the above mortgage contract was concluded. Furthermore, the evidence submitted by the prosecutor alone is insufficient to recognize that the defendant did not notify Kim Nam of the fact that the above mortgage contract was concluded intentionally, or that the defendant had a criminal intent to acquire the purchase price and sold the instant forest by deceiving Kim Nam-han with the intent to acquire the purchase price, even though he did not have an intent or ability to obtain the registration of ownership transfer, and there is no other evidence to acknowledge otherwise.

Therefore, the above facts charged constitute the absence of proof of crime, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

Judge Dog Charter