Defendant 1 and one other

Defendants and Prosecutor

Maximum Republic of Korea

Law Firm Epis, Attorneys Lee Yong-hoon et al.

1. Suwon District Court Decision 2009Ma3 decided Feb. 16, 2009; / 2. The branch court of Suwon District Court Decision 2009DaMa129 decided Jul. 16, 2009

Of the judgment of the first instance, the part against the Defendants and the second judgment shall be reversed.

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

The number of detention days prior to the issuance of the first judgment shall be 31 days per defendant 1, and 32 days shall be included in the above punishment against defendant 2.

Of the facts charged in the instant case, the Defendants are not guilty as to the exercise of the original authenticated deed.

1. Summary of grounds for appeal;

A. Defendant 1

(1) misunderstanding of facts or misapprehension of legal principles

(A) As to the violation of the Mountainous Districts Management Act

“False or other unlawful means” under Article 53 subparag. 1 of the Management of Mountainous Districts Act refers to cases where a false method is mobilized in the procedure for the application of permission for conversion of mountainous districts itself. As in the instant case, the cases where permission for the reclamation of forest land was obtained for the purpose of converting forest land into “housing site”, or where permission for the reclamation of land was obtained by dividing land for the purpose of evading the surface inspection of cultural properties does not constitute “any false or other unlawful means” under the aforementioned Act. Thus, the first instance judgment is erroneous in misapprehending the facts or misapprehending the legal principles on the violation of the Management of Mountainous Districts

(B) As to the fraudulent entry in the authentic deed and the use of the authentic deed original

The conciliation protocol does not constitute a notarial deed under the crime of false entry in the authentic copy of a notarial deed, and even if the applicant for conciliation and the respondent did not actually conclude a sales contract, the agreement cannot be deemed to be false unless there was a mutual agreement between the parties to a formal sales contract under the bilateral conciliation procedure. Therefore, the first instance court erred by misapprehending the legal principles as to the crime of false entry in the authentic copy of a notarial deed or the crime of uttering of the authentic copy of a notarial deed, thereby finding guilty

(2) Unreasonable sentencing

The first instance court's punishment (two years of imprisonment and three years of suspended execution) is too unreasonable in light of the fact that the Defendant did not properly recognize the procedural illegality in the instant development activities, and that the instant land is planned for development and most areas have already been cultivated as dry field by residents, and mountainous districts are not significantly damaged.

B. Defendant 2 (each of the judgment below)

The punishment of each court below (the first judgment: imprisonment with prison labor for 2 years, suspended execution for 3 years, and the second judgment: imprisonment with prison labor for 1 year and 6 months) is too unreasonable in light of the fact that the defendant is living against the wrongness of the defendant, completed mountainous district recovery, completed monthly payments, and led to each act of this case according to the advice of a certified judicial scrivener.

C. Prosecutor (the first judgment of the court below)

Considering the circumstances and methods of each of the instant crimes, etc., in light of the social necessity for the promotion of real estate speculation to be punished, and the benefits acquired by the Defendants from each of the instant crimes, the punishment against the Defendants by the first instance court is too uneasible and unreasonable.

2. Determination

A. Ex officio determination

(1) Determination of consolidated proceedings in the trial

The Court decided to consolidate each appeal case against the judgment of the court below, and each of the offenses against the defendant 2 in the judgment of the court below against the defendant 2 are concurrent offenses under the former part of Article 37 of the Criminal Act, and one sentence shall be sentenced pursuant to Article 38 (1) of the Criminal Act. In this regard, the part against the defendant 2 among the judgment of the court of first instance and the second judgment cannot be maintained any longer

(2) Amendments to Bill of Indictment in the trial court

A prosecutor has reached the trial for the case No. 2009No1042 (the first instance trial) and filed an application for amendment to a bill of amendment with the content of the facts charged as stated below among the facts charged in the case No. 2009No3590 (the second instance trial) and part of the facts charged in the case No. 2009No3590 (the second instance trial). Since this court permitted it, the judgment of the court below was no longer maintained in this respect.

(3) Determination as to the exercise of the original notarial deed

(A) Summary of the facts charged

① Around May 22, 2008, the Defendants conspired to submit and exercise the conciliation protocol (No. 2007 money262) on July 20, 2007, which is the original copy of the notarial deed, to a public official in charge of the said Gun office, who is unaware of such fact, stating false facts.

② On September 14, 2007, the Defendants conspired to submit a protocol of mediation (No. 2007 money422, Suwon District Court Branch) dated September 14, 2007, which was the original copy of the authentic deed, to the public officials in charge of the above Gun administration, who are not aware of such fact.

③ On February 1, 2008, the Defendants conspired to submit a protocol of mediation (No. 2007 money750, Suwon District Court Branch) on February 1, 2008, which was the original copy of the authentic deed, to the public official in charge of the above Gun administration, who is not aware of such fact, and exercised the protocol of mediation (No. 2007 money750, Suwon District Court Branch).

(B) Determination

In light of the above facts charged, the original copy of a notarial deed as referred to in Article 228 of the Criminal Act shall be referred only to as the original copy of the notarial deed as stated in its language and text, and shall not constitute it (see, e.g., Supreme Court Decisions 2001Do6503, Mar. 26, 2002; 2001Do6077, Apr. 26, 2002; 2001Do6077, Apr. 26, 2002). According to the above facts charged and the records of this case, documents used by the defendants shall be submitted to the competent authority while applying for land division in the Cadastral Act and the Enforcement Decree of the same Act, and the authentic copy or copy of each notarial deed (see, e.g., Articles 33(2) and 28 of the Judicial Conciliation of Civil Disputes Act); where land is partitioned by a final judgment of the court, the original copy or copy of the notarial deed shall be submitted to the competent authority at the time of application for land division.

B. Judgment on misconception of facts or misapprehension of legal principles

However, the defendant 1's assertion of misunderstanding of facts or misunderstanding of legal principles is still subject to the judgment of this court, despite the above reasons for ex officio reversal.

(1) As to the violation of the Mountainous Districts Management Act

(A) Article 14(1) of the Mountainous Districts Management Act provides that “Any person who intends to convert a mountainous district shall obtain permission from the Minister of the Korea Forest Service for the purpose of using the mountainous district as prescribed by Presidential Decree.” Article 17(1)1 of the same Act provides that the period for permission granted by the Minister of the Korea Forest Service according to the standards prescribed by Ordinance of the Ministry for Food, Agriculture, Forestry and Fisheries within ten years in consideration of the intended project to convert a mountainous district and divert a mountainous district. Article 18(1)8 of the same Act provides that the project plan and the area of the mountainous district shall be appropriate and the area of the mountainous district shall minimize harm to natural scenery and forests and shall not interfere with recovery from the mountainous district (Article 14(2)) as one of the standards for permission to divert a mountainous district, where the head of a related administrative agency requests consultations with the Minister of the Korea Forest Service to take administrative measures deemed to be appropriate for permission to divert a mountainous district under the provisions of Article 18, and Article 20 of the same Act provides that permission shall be revoked or order to suspend any project or other necessary data (2).

(B) According to the evidence duly admitted and examined by the lower court, the Defendants’ sales of the forest land was made smoothly by viewing the forest land as if it was created as a building site in the Female-gun, Gyeonggi-do (hereinafter referred to as the “Detailed Address 1 omitted), and did not intend to convert the forest land into the above forest land by planting a scalma or ornamental water, but did not have an intention to convert it into the said forest land, first of all, it can be sufficiently recognized that the Defendants filed an application for permission to convert land reclamation with respect to the area of 29,800 square meters (hereinafter referred to as 30,000 square meters) which is not subject to the surface inspection of cultural property surface while cultivating a scalma and planting ornamental trees, and filed a false business plan, farming plan, and farming plan with the female-gun, thereby obtaining permission for conversion of a mountainous district by false or other unlawful means

(2) As to the fraudulent entry in the authentic copy of the authentic deed

Article 228(1) of the Criminal Act refers to a document prepared by a public official in the course of performing his/her duties and having the effect of proving the facts concerning rights and obligations. The conciliation protocol is a document in which a public official voluntarily agreed conciliation provisions, etc. between the parties on the date of conciliation in the course of performing his/her duties and the judgment criteria do not belong to the full free discretion of the public official, but does not belong to the document in the same manner as the written judgment, but has the effect of proving the facts concerning rights and obligations at the same time. Therefore, it is reasonable

In full view of the evidence duly adopted and examined by the lower court and the lower court, the Defendants were merely 1,07 square meters for the purpose of selling and purchasing land at low prices to the general public and for the purpose of acquiring profits from the sale and purchase of the said land at high prices. The Defendants were merely 4,00 square meters of forest land (hereinafter “detailed address 1 omitted) and 64,467 square meters for each of the instant land sales and sale contracts (hereinafter “detailed address 3 omitted) for the purpose of using the same real estate under the name of 5,00 square meters for each of the instant real estate sale and purchase agreements to be signed by the lower court for the purpose of increasing 9,000 square meters and 1,000 square meters of forest land (hereinafter “detailed address 4”), and thus, the Defendants were merely 1,075 square meters of forest land for each of the instant land sale and sale agreements to be entered in the name of 5,000 square meters of forest land under the name of 5,000 square meters of forest land.

Therefore, Defendant 1’s assertion of mistake or misapprehension of legal principles is without merit.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act without examining the defendants and the prosecutor's allegation of unfair sentencing, and all of the judgment of the court of first instance concerning the defendants among the judgment of the court of first instance is reversed, and the judgment of the court of second instance is again decided as follows after pleading

The summary of the facts constituting an offense and its evidence acknowledged by the court is 0.0 to 20.0 won of the first instance judgment. The Defendant, despite being aware of the facts constituting an offense No. 1. 5 to 8 and 9, did not enter the same facts in the separate sheet No. 20 to 20, 70, 2000 won of the separate sheet No. 1 to 30, 2006, 200 to 6.0 won of the separate sheet No. 1 to 20, 300, 2000 won of the separate sheet No. 20 to 6.0, 2006, 207, 300 won of the separate sheet No. 1 to 6.0, 206, 30,000 won of the separate sheet No. 1 to 6.0,000 won of the separate sheet No. 1 to 6.5, 207.

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

(a) Defendant 1: Articles 228(1), 30 ( point of false entry in the authentic copy of a notarial deed, choice of imprisonment), subparagraph 1 of Article 53 and Article 14(1) of the Management of Mountainous Districts Act, Article 30 of the Criminal Act ( point of violation of Mountainous Districts Management Act, Selection of Imprisonment)

B. Defendant 2: Articles 228(1), 30(1), 30(s) of the Criminal Act; Articles 53 subparag. 1, 14(1) of the Management of Mountainous Districts Act; Articles 30(a) of the Criminal Act; Articles 49(1)1 and 7 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act; Articles 30(a) of the Criminal Act; Articles 49(1)10, 33 subparag. 3, and 32(3) of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (amended by Act No. 9346 of Jan. 309); Articles 9(1)3(a) of the former Punishment of Tax Evaders Act (amended by Act No. 9346 of Jan. 30, 2009)

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Code

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Code

The nature and circumstances of each of the crimes of this case, such as dividing forest land into 100 lots by using the adjustment system to avoid the restriction on land division in order to develop and sell the site for electric source housing, and converting the mountainous district into illegal use of considerable area, etc. The Defendants are not obliged to bring enormous profits through the above crime, and Defendant 2 is not obliged to sentence the Defendants to evade taxes exceeding KRW 300 million in the process. Meanwhile, the Defendants’ punishment may not be sentenced to the Defendants. Meanwhile, in the case of Defendant 1, Defendant 2 did not have any history of punishment, and there was no history of punishment for the same crime, and Defendants 2 made efforts to restore forest land to its original state, and all of the sentencing conditions in this case, including the age, character and conduct of the Defendants, and degree of participation.

Of the facts charged in this case against the Defendants, the fact that each of the facts charged in this case does not constitute a crime as stated in subparagraph 2-A (3) and thus, a not-guilty verdict is rendered pursuant to the former part of Article 325 of the Criminal Procedure Act.

Judges Kim Ho-ho (Presiding Judge)

(1) Details of the National Land Planning and Utilization Act and the Enforcement Decree thereof shall be as follows. (1) Any person who intends to do any of the following acts prescribed by the Presidential Decree (hereinafter referred to as "development acts") under Article 56 of the former National Land Planning and Utilization Act (amended by Act No. 7707, Dec. 7, 2005): Provided, That the same shall not apply to the case of urban planning projects; 4. Division of land in urban areas (excluding the site where buildings under Article 49 of the Building Act are located) and the acts falling under Article 56 (1) of the former Enforcement Decree of the Building Act (amended by Act No. 7707, Mar. 8, 2006; hereinafter the same shall apply) which fall under one of the following items, and the acts prescribed by the Presidential Decree of the Special Metropolitan City Mayor, Metropolitan City Mayor, or the head of Si/Gun (hereinafter referred to as the "permission for development acts") which fall under the following items:

(2) Article 58 of the National Land Planning and Utilization Act provides for the criteria for permission for development activities and provides for detailed matters as prescribed by Presidential Decree. Accordingly, Article 56 [Attachment Table 1] of the Enforcement Decree of the Act on Planning and Utilization of National Land (amended by Presidential Decree No. 19400, Mar. 23, 2006) was amended as follows. The criteria for permission for development activities are as follows. (d) The criteria for permission for development activities by item 2 of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 19400, Mar. 23, 2006). If land is partitioned within a green belt zone without obtaining permission, authorization, etc. under the relevant Acts and subordinate statutes, it shall be divided into more than the size prescribed by urban planning ordinance than the size prescribed by Article 49(1) of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 19400, Mar. 23, 2006).