Defendant 1 and four others

Prosecutor

Madern

Law Firm Cheongdam et al.

Suwon District Court Decision 2010Gohap281 Decided November 12, 2010

All appeals filed by the prosecutor against the Defendants are dismissed.

1. Judgment on the prosecutor's grounds for appeal

A. As to the assertion that the crime of giving property in breach of trust is established

1) Summary of the grounds for appeal

Defendant 1, 2, and 3 violated the rules of the non-indicted 1 corporation (hereinafter "non-indicted 1 corporation") and the sale procedure under the Rental Housing Act, thereby obtaining preferential treatment and acquiring property from Defendant 4, 5 who is a broker. Thus, the crime of giving property in breach of trust is established. However, the judgment of the court below which acquitted this part of the facts charged is erroneous in the misapprehension of legal principles or in the misapprehension of legal principles.

2) The judgment of the court below

In full view of the following circumstances, it is difficult to readily conclude that the Defendants committed an offense identical to the facts charged in the instant case with the awareness that the Defendants offered and acquired compensation in relation to Defendant 1 and 2’s duties by committing an illegal solicitation. Furthermore, it is reasonable to view that the nature of the money provided and acquired by the Defendants was distributed according to the agreed distribution ratio of profits arising from the violation of the Rental Housing Act or the violation of the Housing Act.

① The Defendants agreed to the interest in seeking economic benefits through the sale of the right of lease by the cancellation household.

② The amount received and provided by the Defendants is only the premium paid by the re-contractors, and it does not constitute the amount separately raised by Defendant 4 and 5.

③ In the instant case, the amount distributed to Defendant 1, etc. is much more than the amount distributed to Defendant 4 and 5. According to this, it is difficult to view that Defendant 4 and 5 provided the rest of the Defendants with respect to illegal solicitation more than the amount that Defendant 4 and 5 obtained through brokerage. Rather, it is reasonable to view that Defendant 1 who provided the leased apartment was distributed more profits than Defendant 4 and 5 among individuals.

④ The Defendants determined the distribution ratio based on the premium rate formed at the time of each transaction on four occasions, and Defendant 1 appears to have led to such matters. However, the fact that the victims of the crime of giving property in breach of trust act act as above is an example.

⑤ Defendant 4 transferred money to Defendant 1, 2, and 3 according to the agreed allocation ratio based on the “number of households entered into a contract for de facto re-lease.” In light of the timing and frequency of transfers, it appears that the premium was settled according to the mutual agreement ratio after the premium for each household was paid (Therefore, it is difficult to view that Defendant 4 made an illegal solicitation to Defendant 1 and provided property gains).

④ Defendant 4’s payment of the amount of KRW 5 million per household, KRW 7 million, KRW 40 million paid to Defendant 3, and KRW 30 million by Defendant 4 to Defendant 1 and 2 is premised on the fact that he can receive more than the premium by taking into account the market price at the time of the transaction. In short, it is difficult to presume that Defendant 4 agreed to pay a fixed amount in advance for an illegal solicitation regardless of the transaction price or premium amount.

3) The judgment of this Court

Examining the relevant evidence in light of the records, the above determination by the court below is acceptable, and there is no error of law by mistake of facts or misapprehension of legal principles as alleged by the prosecutor.

B. As to the assertion that the violation of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act is established

1) Summary of the grounds for appeal

The transaction amount prescribed in the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act refers to the transaction amount agreed between the parties to the transaction. The court below recognized the money acquired by a broker, who is not a party to the transaction, as the transaction amount, and judged that Defendant 4 and 5 did not have any excess fee, there is an error of law or misunderstanding of legal principles.

2) The judgment of the court below

A) The record reveals the following facts.

① From the brokerage of Defendant 4, 5, etc., the re-contractors who concluded a re-lease contract between Nonindicted Company 1 and Nonindicted Company 1 as indicated in the attached list of crimes (hereinafter “crime list”) No. 1 to 4 as indicated in the judgment of the court below, entered into a lease contract with Nonindicted Company 1 as lessor at the office of the Gyeonggi branch of Nonindicted Company 1 as the lessor. Defendant 1 to 4 paid the premium equivalent to the amount indicated in the column of “frut or brokerage commission” column in the crime list No. 1 to 4.

② In addition, Defendant 4, who received premium through other intermediaries or through employees of △△△ Real Estate or △△△△△○○○○, wired the total amount of KRW 1 billion to the accounts designated by Defendant 1, 2, and 3 on several occasions from January 14, 2009 to October 12, 2009 pursuant to each of the above agreements with Defendants 1, 2, and 3, pursuant to the terms and conditions as seen earlier, was not clearly identified as to which generation the remittance amount was carried out, because the time when he received premium is different for each transaction under a contract.

B) As seen earlier, the so-called “consort” in the instant case is the part arising in the process of concluding a re-lease contract by the lessee of a re-contract with the payment of the premium in excess of the sale price according to the market price at the time. As such, it is difficult to regard the lessee of a re-contract as the “consort contract” that the lessee paid to the broker in return for the broker’s act with respect to the “consort business” (limited to the receipt of the said money under the name of the premium equivalent to the profits from the market price of Defendant 4 and 5) but rather, deeming that the said money is included in the “transaction price” subject to the calculation of the brokerage commission is consistent with general trade practice and common sense (see Supreme Court Decision 2004Do62, May 27, 2005, etc.).

Therefore, it is difficult to accept the facts charged of this case premised on the fact that the amount exceeding the statutory fees from the re-contractors in the process of mediating the sales contract for the leased apartment cancellation household in collusion with the Defendants constitutes brokerage commission, and there is no evidence to prove that the above amount constitutes brokerage commission even if all the evidence submitted by the prosecutor are compiled.

3) The judgment of this Court

Examining the relevant evidence in light of the records, the above judgment of the court below is acceptable, and there is no error of misunderstanding of facts or misunderstanding of legal principles as alleged by the public prosecutor (in particular, the witness of the court below (the employee of the defendant 4 and the defendant 5) stated that the total amount of the transaction price of rental apartment including the premium was attached to the brokerage office outside the brokerage office at the time, and that the brokerage commission was not separately indicated, ② the witness of the court below (the non-indicted 4, the contractor of the non-indicted 4, the non-indicted 4, the ○○○○○○○ apartment rental apartment in the housing site development zone in the Sungsung-si City, the contractor of the non-indicted 3, the non-indicted 5 [the contractor of the non-indicted 4 and the non-indicted 5] stated that the broker separately paid 1,800,000 won other than the brokerage commission, and the broker stated that it is not the brokerage commission].

2. Conclusion

Therefore, since the public prosecutor's appeal against the defendants is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Maximum Pung (Presiding Judge)