Defendant

Defendant

Private iron;

Attorney Park Jae-young et al.

Incheon District Court Decision 2006 High Court Decision 870 Decided June 9, 2006

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

In light of the purport of the Act on Special Measures for Designation and Management of Development Restriction Zones (hereinafter “Special Measures Act”), transfer of the right of relocation is permitted. In this case, the person entitled to file an application for relocation permission is limited to the owner of the building at the time of removal (the transferor of the right of relocation) and the meaning of intending to carry out relocation as stipulated in the proviso of Article 11(1) of the Act on Special Measures for the Promotion of Development Restriction Zones includes not only the case where the applicant (the transferor of the right of relocation) voluntarily intended to carry out relocation but also the case where the transferee of the right of relocation wishes to build the building for the transferee of the right of relocation. Thus, the transferor of the right of relocation who is entitled to file an application for relocation permission cannot be deemed to fall under the case where the transferor of the right of relocation has filed an application for relocation permission under his name for another person (the transferee of the right of relocation) who intends to build the building in the actual place of relocation and to reside. Thus, the court below found the facts charged in this case guilty by misapprehending the legal principles as to transfer of the right of relocation or other unlawful.

B. Unreasonable sentencing

Even if the charge of this case is found guilty, in light of the fact that the defendant did not have any unlawful purpose, such as speculation, a fine of eight million won imposed by the court below against the defendant is too unreasonable.

2. Determination

A. misunderstanding of facts or misunderstanding of legal principles

The key issue of the instant case is whether the transfer or acquisition of the right of separation is possible, i.e., whether the transfer or acquisition of the right of separation is legally effective, but whether the Defendant, who is unable to obtain a house construction permit within his own development restriction zone, such as the instant facts charged, obtained a building permit by lending the name of a legitimate holder of the right of separation in accordance with the relevant Acts and subordinate statutes, constitutes a case where the construction permit was granted by fraudulent or other unlawful means as

The purport of the former Act on Special Measures for Designation and Management of Development Restriction Zones (amended by Act No. 7383, Jan. 27, 2005; hereinafter “former Act”) is to provide an opportunity to improve the residential environment to the original residents to the extent that it does not interfere with the realization of the purpose of the initial designation of the development restriction zone in the case where a person living in the development restriction zone was unable to extend or rebuild a building because he/she did not obtain the consent of land ownership, thereby causing substantial difficulty in improving the residential environment due to the failure of a person living in the development restriction zone, or loses his/her living base due to the removal of the existing building due to the implementation of public works, and there is a defect in continuing his/her living. In full view of the purport of the former Act and relevant provisions, it is reasonable to view that the acquisition by another person of the right of relocation from the original farmer for the purpose of constructing his/her building and obtaining the building permission under the name of the original farmer, and thus, it is reasonable to deem that only the original resident who actually obtained the building permission under the name constitutes an unlawful provision of the former Act.

Therefore, this part of the defendant's argument is without merit.

B. Unreasonable sentencing

The defendant's act not only goes against the legislative intent of the former Act on Special Measures to prevent urban disorderly expansion and to preserve the natural environment surrounding the city through the efficient management of development restriction zones, but also to promote real estate speculation, one of the unique diseases in our society through the transfer of the right of reconstruction, and thus, according to all sentencing conditions of this case, including the defendant's age, character and conduct, and criminal records, even if considering the circumstances asserted by the defendant, it is deemed appropriate that the sentence imposed by the court below against the defendant is appropriate. Thus, this part of the defendant's assertion is without merit.

3. Conclusion

Since the appeal by the defendant is groundless, the appeal by the defendant is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Hong Ho-ho (Presiding Judge)