Defendant 1 and one other

Defendant 1 and Prosecutor

Dried bars

Attorneys Ansan-ri Outdoor 2 others

Incheon District Court Decision 2008 Godan2578 Decided February 5, 2009

All the judgment below is reversed.

Defendant 1 shall be punished by imprisonment with prison labor for ten months and by imprisonment with prison labor for one year and six months.

1. Summary of the facts charged in this case

Defendant 1 is the friendship of Nonindicted Party 1 (Nonindicted Party 1 in the Supreme Court Decision).

On March 24, 1997, Non-Indicted 1 entered into an agreement with Incheon Metropolitan City to be supplied with 50 square meters of land within the development project district as part of the measures for the specialization of the small-scale fishermen due to the project for the development of the Songdo City from Incheon Metropolitan City, and on March 18, 1998, sold the above special sale right of the land for countermeasures against the living of the Songdo residents (hereinafter referred to as "the land for countermeasures against the development project for the development project for the development project for the development project for the development project for the 40,000,000 won to the victim non-indicted 2, and received the above sale price from the victim on the same day.

Nonindicted 1, from March 16, 2004, was admitted to the Incheon Specialized Care Center due to dementia, and Defendant 1 was dealt with Nonindicted 1’s her work on behalf of Nonindicted 1, who had weak judgment ability. Defendant 1, around March 18, 1998, purchased Nonindicted 1 with a view to Nonindicted 1 for KRW 40,00,000 from the victim around May 16, 2005, and Defendant 1, on behalf of Nonindicted 1, became aware of the fact that he was heard from the victim around May 16, 2005. As such, Defendant 1, on behalf of Nonindicted 1, had the victim change the name of the Dob Area, thereby enabling the victim to acquire the ownership of the land by making the victim acquire the ownership of the land.

Afterwards, when the parcel number of the land that Nonindicted Party 1 supplied was determined as 1/56 of the 9,341.9 square meters of the land located in Yeonsu-gu Incheon Metropolitan City (hereinafter referred to as "the land in this case"), Defendant 1, on behalf of Nonindicted Party 1, entered into a supply contract for the land in this case with the seller, Nonindicted Party 1, and the Mayor of Incheon Metropolitan City (the head of the Incheon Metropolitan City Free Economic Zone Authority) as 70,250,870 won and paid 7,000,000 won as down payment on the same day to the free economic zone authority of Incheon Metropolitan City, and paid 0,000 won and paid 0,000 won for 0,000 won and 20,000 won and 30,000 won and 60,000 won and 20,000 won and 30,000 won and 60,000 won and 20,000 won and 30,0.

On or around June 20, 2005, around August 18, 2005, the land area of this case was introduced by Defendant 2 to Nonindicted 5, Defendant 2 and Nonindicted 6, and around September 12, 2005, it was sold before Nonindicted 7. However, around September 2005, Nonindicted 7 knew that the victim was subject to the disposition of prohibition on selling the right in the land area of this case, while the land area of this case was confirmed by the Incheon Free Economic Zone Authority, the land area of this case was sold before Nonindicted 7 was sold to Nonindicted 7, but Nonindicted 7 knew that the victim was subject to the disposition of prohibition on selling the right in the land area of this case, and Defendant 2 stated that Nonindicted 3 sold the land of this case to Nonindicted 3 and made settlement of the purchase price of this case by Defendant 1 through the double selling of the land of this case by Defendant 1 to Defendant 1, Defendant 2 and Defendant 301, Defendant 200 and Defendant 301.

Defendant 2, through civil litigation during the process of the criminal complaint case, has acquired the right to the instant Chogbbbbbbbbbbbbb area. around December 13, 2005, he jointly filed a lawsuit claiming the ownership transfer registration of the instant land with Nonindicted 1 and Incheon District Court (Seoul District Court Decision 2005Da118625). Defendant 1 withdraws the lawsuit against Incheon Metropolitan City, and around April 26, 2006, Defendant 1 entered the lawsuit against Nonindicted 260,000, which was agreed upon by Defendant 1 while selling the instant Chogbbbbbbbbbbbb area. Defendant 1 did not return 82,00,000 won to Defendant 1; Defendant 2 was present at the Incheon District Court at around 178,000,000, and Defendant 1 was paid to Nonindicted 25, the Incheon District Court at around 2030, Sept. 12, 2006.

Defendant 2 filed a lawsuit against Yeonsu-gu Incheon Metropolitan City on September 28, 2006 on the ground of the above voluntary adjustment against the Incheon Metropolitan City (Dong name and lot number 2 omitted) 9,341.9 square meters for the ownership transfer registration of 1/56 shares (the parcel number of the land in this case is changed) (No. 112372). Defendant 2 completed the registration of ownership transfer of the said land in his/her name on May 29, 2007, deeming that the name of the Dongbbbbbbbbbbbbbbbb area in this case was changed to Defendant 2, and around April 26, 2007, Incheon Metropolitan City received 63,250,870 won from Defendant 2. The above judgment became final and conclusive on May 22, 2007, and completed the registration of ownership transfer of the said land in his/her name around May 29, 2007.

As a result, Defendant 2, in violation of Defendant 1’s duties to enable the victim to acquire the ownership of the instant land in collusion, caused Defendant 2 to obtain the ownership of the instant land, thereby acquiring the pecuniary benefits equivalent to KRW 260,000,000, which is located in the Gabbbing area of the instant case, and thereby causing damage equivalent to the same amount to the victim.

2. The judgment of the court below

The court below found Defendant 1 guilty and sentenced Defendant 1 to one year and six months of imprisonment, and found Defendant 2 not guilty on the ground that Defendant 2 had actively participated in Defendant 1’s act of breach of trust on the ground that it was insufficient to recognize that Defendant 1 had actively participated in Defendant 1’s act of breach of trust because it was merely for Defendant 2 to not deem that Defendant 2 would not recover the money already invested, or for Defendant 2 to exercise his right based on the second sales contract which had already been lawfully concluded and became effective in order to benefit from a sales contract

3. Summary of grounds for appeal;

A. Defendant 1 (Provided, That this is the assertion after the expiration of the period to submit the grounds for appeal)

The sentence of the court below (one year and six months of imprisonment) is too unreasonable.

B. Prosecutor (Defendant 2)

In light of the facts found after Defendant 2 knew of the double selling of Defendant 1, Defendant 2 presented a legal method to realize the effect of double selling, which is the breach of trust by Defendant 1, and promised to pay for the double selling of this case to Defendant 1. The court below acquitted Defendant 2 on the ground that Defendant 2 was transferred the ownership of this case’s land by filing a civil lawsuit and conducting voluntary conciliation. Thus, the court below erred by misapprehending the legal principles or misapprehending the legal principles.

4. Judgment of the court below

A. As to the prosecutor's appeal, that is, the facts charged on Defendant 2

1) According to the evidence duly adopted and examined by the lower court and the first instance court, the following facts are recognized.

A) On March 24, 1997, Nonindicted Party 1 entered into an agreement with Incheon Metropolitan City to be supplied with 50 square meters of land in the Songdo Urban Development Project District, and on March 18, 1998, sold to the victim Nonindicted Party 2 the aforementioned special right to purchase the land for living countermeasures against Songdo Residents (hereinafter referred to as "the land for compensation for fishery business, the area for compensation for fishery business, and the area for compensation for lighting, etc.") in KRW 40,00,000, and received the above payment from the victim on the same day.

B) Defendant 1, around March 16, 2004, when Nonindicted 1 was admitted to the Medical Care Center due to dementia, he was able to assist Nonindicted 1 as his grandchildren or on behalf of Nonindicted 1. However, on May 16, 2005, Defendant 1 expressed that the victim purchased 40,000,000 Won from the victim around March 18, 1998.

C) After that, when the parcel number of the land to be supplied by Nonindicted Party 1 was determined as the instant land on behalf of Nonindicted Party 1, Defendant 1 entered into a contract for the supply of the instant land (hereinafter “instant land supply contract”) with the Incheon Metropolitan City Mayor (the head of the Incheon Metropolitan City Free Economic Zone Authority) as the buyer on May 27, 2005, and with the purchase price of KRW 70,250,870 at the Free Economic Zone Authority, and paid KRW 7,00,000 as the down payment to the Free Economic Zone Authority of Incheon Metropolitan City on the same day.

D) On May 27, 2005, Defendant 1 entered into a sales contract with Nonindicted 4 and Nonindicted 3 to sell the status of the buyer of the instant land from Nonindicted 1 to Nonindicted 3 for KRW 260,000 (hereinafter referred to as “second sales contract”) at the office of ○○○○○○○○ on the part of Nonindicted 3 (hereinafter referred to as “Nonindicted 3”), and received the remainder of KRW 20,000,000 as the down payment from Nonindicted 3 around that time as the down payment, around June 27, 2005; around June 30, 2005; around July 1, 2005; and around July 1, 2005; and around June 30, 2005; and around KRW 60,000; and around June 6, 2000; and

E) After that, around June 20, 2005, around August 18, 2005, Nonindicted 7 knew that the land price for the instant reform was the introduction of Defendant 2, Defendant 2 and Nonindicted 6, and Defendant 7 around September 12, 2005. However, around September 2005, Nonindicted 7 had confirmed the legal relationship of the instant reform area to the Incheon Free Economic Zone Authority, and the victim confirmed the provisional disposition prohibiting the sale of the instant reform area (Seoul District Court Decision 2005Kadan21840, Sept. 12, 2005), it was finally determined that Defendant 1 did not receive the sale price from Defendant 2 in the process of Defendant 1’s sale.

F) On October 28, 2005, the victim filed a lawsuit against Nonindicted Party 1 to change the purchaser’s name of the instant land supply contract (Seoul District Court 2005Da1045655) and won a favorable judgment on August 8, 2006, and the judgment became final and conclusive on September 27, 2006.

G) On October 31, 2005, Defendant 2 filed a criminal complaint against Defendant 1 and Nonindicted 3 with the purport that Defendant 1 and Nonindicted 3 double selling the instant Chogbbbbbbgggggggggggging area and acquired money from themselves.

H) On November 29, 2005, Defendant 2, etc. filed a lawsuit claiming the ownership transfer registration of the instant land with the Incheon District Court as Defendant 1 et al. on December 13, 2005 with the Incheon District Court, where the debtor was Nonindicted 1 and 3 debtors Incheon Metropolitan City, and Nonindicted 1 received a provisional disposition prohibiting the disposal of the right to claim ownership transfer registration under the instant land supply contract against Incheon Metropolitan City (2005Kadan26854), and filed a lawsuit claiming the ownership transfer registration of the instant land with Nonindicted 1 et al. as Defendant around December 13, 2005.

I) On April 26, 2006, Defendant 2 prepared a statement of payment that Defendant 1 would pay KRW 178,000,000, after deducting KRW 82,000,000, which was not returned from Defendant 1, out of the sales amount agreed by Defendant 1, when Defendant 1 won in the above lawsuit for the registration of ownership transfer to Defendant 1, and revoked Defendant 1’s criminal complaint on the same day.

(j) On July 2006, the court of the above lawsuit seeking ownership transfer registration, and the application for permission to act for Defendant 1 to act on behalf of Defendant 1 was received, and thereafter the response was submitted in the name of Defendant 1 to the effect that all of the grounds for the above lawsuit seeking ownership transfer registration are recognized.

(k) At around 11:00 on September 12, 2006, Defendant 1 was present at the Incheon District Court 323, the Incheon District Court 48, the Nam-gu Incheon District Court 48, and Defendant 2’s attorney, the attorney Nonindicted 9, who was the attorney of Defendant 2, was present at the meeting. Nonindicted 1 was established a voluntary mediation with regard to the purchaser’s name of 56 out of 9,341.9 square meters in Yeonsu-gu Incheon Metropolitan City (Dong name and lot number 1 omitted) and 9,341.9 square meters in accordance with the land supply contract for the fishery life of Songdo, which was between Nonindicted 1 and the Mayor of Incheon Metropolitan City on May 27, 2005.

(l) On September 28, 2006, Defendant 2 filed a lawsuit against Yeonsu-gu Incheon Metropolitan City for the registration of ownership transfer against the Incheon Metropolitan City (Dong name and lot number 2 omitted) of 1/56 of the 9,341.9 square meters (the parcel number of the land in this case is changed) (No. 2006Da112372), and on April 26, 2007, Defendant 2 completed the registration of ownership transfer of the above land under his own name on May 29, 2007, by deeming that the name of the 2006 Cho Jae-bibbbggggggggggggggggggggggggggggggggggggggging to be changed to Defendant 2.

2) If it is recognized that a beneficiary who benefits from the execution of the crime of breach of trust or a third party closely related thereto has actively participated in the act of breach of trust by inducing an executor of the crime of breach of trust or participating in the whole process of the act of breach of trust, the principal offender and the joint principal offender shall be established (see Supreme Court Decision 9Do1911 delivered on July 23, 199, etc.).

6. The court below found Defendant 1’s non-indicted 1’s non-indicted 2’s non-indicted 1’s non-indicted 2’s non-indicted 2’s non-indicted 1’s non-indicted 2’s non-indicted 2’s non-indicted 1’s non-indicted 2’s non-indicted 2’s non-indicted 1’s non-indicted 2’s non-indicted 2’s non-indicted 1’s non-indicted 2’s non-indicted 2’s non-indicted 1’s non-indicted 2’s non-indicted 2’s non-indicted 1’s non-indicted 2’s non-indicted 1’s non-indicted 2’s non-indicted 1’s non-indicted 2’s non-indicted 1’s non-indicted 3’s non-indicted 1’s non-indicted 3’s non-indicted 3’s non-indicted 1’s non-indicted 1’s non-indicted 2’s non-indicted 1’s non-indicted 26’s non-indicted

B. As to Defendant 1

Although Defendant 1 did not submit the statement of grounds of appeal within the period for submitting the statement of grounds of appeal, it is unreasonable to view that the sentence of the court below is somewhat unreasonable in light of the following: (a) Defendant 1’s act of violation of his duty and causing property damage equivalent to KRW 2.60,000 to the victim; (b) Defendant 1 did not agree with the victim; and (c) Defendant 1 acquired a large amount of money as agreed after the instant crime from Defendant 2; (d) Defendant 1 did not have any power other than the records of the instant crime; (b) Defendant 1 did not have any power other than the records of the instant crime; (c) served in social welfare facilities and lived in good faith; and (d) Defendant 2’s act of violation of his duty without any room to choose the plan.

5. Conclusion

Therefore, the judgment of the court below against Defendant 1 is reversed in accordance with Article 364(2) of the Criminal Procedure Act on the ground of the above ex officio reversal, and since the prosecutor's appeal against Defendant 2 is justified, the judgment of the court below against Defendant 2 is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

Criminal facts against the Defendants recognized by this court are as stated in Paragraph (1).

1. Legal statements by Defendant 1 and some of Defendant 2’s legal statements

1. The legal statement of the lower court by Nonindicted 2 of the witness

1. Statement of prosecutorial statement against the Defendants

1. Statement made by the prosecution against Nonindicted 3 and 10

1. Each description of a real estate sales contract, receipt, written decision, judgment, statement of mediation, written request for permission by proxy, statement of mediation, written request for permission by proxy, written response, certified copy of the register, copy of a written withdrawal of complaint, copy of a receipt, and written diagnosis;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 355(2) and (1), and 30 of the Criminal Act (Determination of Imprisonment, respectively)

Defendant 2 committed the instant crime more led than Defendant 1 in the process of civil conciliation after Defendant 1 filed a criminal complaint against Defendant 1, and up to the civil conciliation, taking into account the fact that the gains acquired by resale of the instant Chog-brea District, which is large amount of benefits acquired by the resale of the instant landscape-brea District, which was not agreed with the victim, and that there was no war.

Judges Dok-ho (Presiding Judge)