Defendant

Defendant

Kim Don-do

Jeonju District Court Decision 2005 High Court Decision 855 decided March 15, 2006

The judgment of the first instance shall be reversed.

Defendant shall be punished by a fine of KRW 2,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

A. Error of mistake

First, although it is recognized that Nonindicted Party 1 received KRW 100,00 from Nonindicted Party 1, this is not paid as a brokerage fee for real estate sales contract, but received as a compensation for actual expenses such as transportation expenses and the value of guidance books, etc. Second, the first instance court found Defendant 2 and Nonindicted Party 1 guilty of all the facts charged even though it did not demand 30,000 won as a brokerage fee. This is a violation of the rules of evidence, thereby affecting the conclusion of the judgment.

B. Unreasonable sentencing

Even if a domestic conviction is recognized, the sentence of the first instance judgment is too unreasonable.

2. Determination

A. Determination on the part demanding 30 million won

Comprehensively taking account of the evidence duly examined and adopted by the first instance court, Nonindicted 2 made a statement to the effect that the Defendant would purchase the instant real estate, including 25,238 square meters (hereinafter “the instant real estate”) in Geumsan-si, the ownership of which was Geumdo-do-ri (number omitted), was deposited in the several offices of real estate intermediaries, and that the Defendant without the real estate intermediary qualification certificate, introduced Nonindicted 1 in the office of the Hasan-si, the Hado-Eup, the Do-Eup, the first instance court introduced Nonindicted 3 of this case’s real estate at the office of the Hasan-si, the 5th day of the same month, and only the 200 million won, and there is no reason to acknowledge that the Defendant would have sold the instant real estate to Nonindicted 2, 300,000,000 won from the 6th day of the same month, and then there is no reason to acknowledge that the Defendant would have sold the real estate to Nonindicted 3,400,000 won.

B. Ex officio determination

Before determining the remaining grounds for appeal by the defendant, the prosecutor examined the part of the facts charged in this case as follows: " around 13:00,000 won from the above non-indicted 1 at the south-ri branch located in Yari-si, Yasan in the first order of the same month in terms of fees for this objection, and around 13:00 won from the above non-indicted 1; the seller to the non-indicted 2, as a broker fee, 30,000 won from the non-indicted 1; and about 30,000,000 won from the buyer to the non-indicted 1, the non-indicted 2, as the broker fee of the same month; and around 30,000,000 won from the seller to the non-indicted 1 on March of the same year; and the court's judgment before changing the indictment to the effect that the change to the indictment is no longer possible."

Therefore, without determining the remaining grounds for appeal by the defendant, the judgment of the first instance court is reversed ex officio without examining the remaining grounds for appeal by the defendant, and it is again decided as follows.

At around 15:00 on January 6, 200, the Defendant, without registering the establishment of a broker office with the competent authority, assisted Nonindicted Party 2 to sell five parcels of land, including the 25,238 square meters of Dog-ri, Dog-ri, Dog-ri, which are owned by Nonindicted Party 2, to Nonindicted Party 1, for KRW 534,400,000,000,000, in terms of fees therefor, to Nonindicted Party 2 on any of the day of the same month, and on any of March of the same year, operated real estate brokerage business by demanding the buyer Nonindicted Party 1 to sell KRW 30,000,000, calculated at KRW 30,000 per ordinary day on any of the following day.

1. Article applicable to criminal facts;

Article 15 of the Addenda of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act (Act No. 7638 of July 29, 2005), Articles 38(1)1 and 4(1) of the former Real Estate Brokerage Act (wholly amended by Act No. 7638 of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions)

2. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

3. Order of provisional payment; and

Article 334(1) of the Criminal Procedure Act

4. Exemption from bearing the litigation costs;

The proviso of Article 186 (1) of the Criminal Procedure Act

Although the Defendant is the first offender and there is no actual benefit from the instant crime, it is recognized that there is a little amount of money requested by the Defendant to Nonindicted 2 and Nonindicted 1, the Defendant does not seem to be able to deny the crime and reflect the truth at the end, and the punishment is determined as ordered by taking into account the various sentencing conditions shown in the argument of the instant case.

Judges Han Jin-hun (Presiding Judge)