In a case where the prosecutor indicted the Defendants on the act of creating a collateral security after the resale of the unregistered land within the zone subject to land transaction permission, but applied for the amendment of a bill of indictment in addition to the fraudulent charges on the deception of the purchase price, the case holding that the court below erred by misapprehending the legal principles on the identity of the charges on the actions of the court below which permitted the amendment of a bill of indictment, on the contrary, even though each of the above facts cannot be deemed to be identical

The case holding that the court below erred by misapprehending the legal principles on the identity of the charges, etc. in the case where the court below erred by misapprehending the legal principles on the measure to modify an amendment to an indictment, on the ground that each of the above criminal facts committed by deceiving victims and applying for the addition of the charges of fraud, on the grounds that the Defendants, without transferring the unregistered land within the land zone subject to land transaction permission, did not transfer the registration of the purchase price to a third party, thereby acquiring pecuniary benefits and causing losses to the purchaser, and that there was no intention or ability to transfer the registration of transfer of ownership by cancelling the collateral which was scheduled to be set up in the future, and that permission for conversion would be revoked, even though the above criminal facts are clearly different from the date and time, place, method, and method of the crime, and the result of the crime are different, and thus, it cannot be deemed that the basic facts are identical.

Articles 347(1) and 355(2) of the Criminal Act; Article 118 of the National Land Planning and Utilization Act; Article 298(1) of the Criminal Procedure Act

Defendant 1 and one other

Defendant 1 and Prosecutor (as to the Defendant)

Attorney Han Han-chul et al.

Suwon District Court Decision 2009No453 decided February 22, 2011

The part of the judgment of the court below against Defendant 1 is reversed, and that part of the case is remanded to Suwon District Court Panel Division. The prosecutor's appeal against Defendant 2 is dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal on the fraud against the victim Nonindicted 1

Defendant 1’s ground of appeal on this part is without merit due to the selection of evidence or fact-finding, which belongs to the exclusive jurisdiction of the lower court, and it is not a legitimate ground of appeal. As otherwise alleged in the ground of appeal, the lower court did not err by violating logical and empirical rules and exceeding the bounds of the principle of free evaluation of evidence.

2. As to the grounds of appeal by the prosecutor on the primary facts charged against the Defendants

Where a land transaction contract subject to permission under the National Land Planning and Utilization Act is a contract excluding or evading permission from the beginning, it may not be deemed null and void as a final and conclusive invalidation without waiting for whether to grant permission, and where the land within the area subject to permission for land transaction is sold before sale from the owner Gap, the real estate broker Eul, and Byung through Byung for the purpose of obtaining gains gains from resale under the agreement on the interim omission registration without obtaining permission for transaction or having completed the registration of transfer of ownership, there is no room for becoming effective as a final and conclusive invalidation (see Supreme Court Decision 96Da3982, Jun. 28, 1996). In addition, if the land located within the regulation zone under the above Act was sold, but there is no obligation to cooperate with the seller in the registration of transfer of ownership to the buyer, and therefore, the seller cannot be deemed a person who administers another's business (see Supreme Court Decision 95Do2891, Feb. 9, 196).

Based on its adopted evidence, the court below affirmed the judgment of the first instance court which acquitted the Defendants on the charges of breach of trust on the ground that Defendant 1 did not constitute the victim Nonindicted 3 and 4 because it was finally null and void in a contract concluded for the purpose of avoiding land transaction permission, and the Defendants did not constitute the victim Nonindicted 4’s non-indicted 3 and the victim Nonindicted 4’s non-indicted 2, etc., who was the original owner, sold the forest after dividing them from the beginning without the intention of obtaining land transaction permission, and completed provisional registration directly from the victim Nonindicted 3 and the victim Nonindicted 4, etc., on the date of the designation of the land transaction permission zone.

In light of the above legal principles, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to land transaction permission or breach of trust as alleged in the grounds of appeal.

3. As to Defendant 1’s grounds of appeal on the ancillary facts charged

The modification of the indictment shall be permitted only to the extent that the identity of the facts charged is recognized, and where there exists an application for modification of the indictment to the effect that the facts charged are added as the facts charged, the court shall dismiss the application for modification (Article 298(1) of the Criminal Procedure Act). The identity of the facts charged is maintained if the social facts, which form the basis of the facts, are the same in the basic point of view. However, in determining the identity of these basic facts, it shall be based on the Defendant’s act and the social factual relations, and shall also take into account normative elements (see Supreme Court en banc Decision 93Do2080, Mar. 22, 1994; Supreme Court Decision 2002Do587, Mar. 29, 2002, etc.).

In light of the records, the prosecutor found the Defendant not guilty of the instant charges in breach of trust of 30 million won on August 11, 2004. The Defendant conspired to sell the victim’s non-indicted 1, 613m2, and 676m2 to the non-indicted 5,000,000 won of the forest land (number 1 omitted) owned by the non-indicted 5, and received KRW 27,64 million out of the purchase price, and sold the victim’s new forest land (number 3 omitted) owned by the non-indicted 4 to the non-indicted 640,000,000 won for KRW 70,000,000,000,000 won for KRW 70,000,000,000,000,000 won for KRW 306,000,000,000,000 won for the non-indicted 1,606.

In light of the above legal principles, the first crime of breach of trust against the Defendants, which was prosecuted by the Prosecutor, and the crime of fraud added as a preliminary one by the Prosecutor upon receiving an application for changes in indictment, are different in the contents and form of the crime, such as the date, time, place, means, and method of the crime, and the result of the crime differs, and there is a substantial difference in the nature of the crime

Therefore, the modification of the indictment of this case is not permitted. Nevertheless, the court below admitted Defendant 1 guilty of the modified conjunctive charges after permitting the modification of the indictment. The court below erred by misapprehending the legal principles on the identity of the facts charged or the modification of the indictment, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit.

4. As to the grounds of appeal by the prosecutor on the ancillary facts against Defendant 2

As seen earlier, insofar as the amendment of the indictment in this case is not lawful, the Prosecutor’s ground of appeal on the premise that the amendment is legitimate is without merit.

5. Scope of reversal against Defendant 1

Therefore, among the judgment below, the part on the ancillary charge against Defendant 1 should be reversed without examining the remainder of the grounds of appeal. As such, the part on the fraud of the victim non-indicted 1 for whom one punishment is imposed in relation to concurrent crimes under the former part of Article 37 of the Criminal Act cannot be reversed together. As long as the ancillary charge is reversed, the part on the ancillary charge in relation to the same body should be reversed.

6. Conclusion

Therefore, the part against Defendant 1 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The Prosecutor’s appeal against Defendant 2 is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)