Whether confiscation and collection can be made by deeming that the price received from a third party under a contract for unregistered resale of real estate is acquired in connection with the act of violating Article 8 subparagraph 1 of the Act on Special Measures for the Registration of Real Estate (negative)

In a case where a person who has entered into a contract (the first contract) with the owner of a real estate intends to conclude a new contract (the second contract) with a third party for the transfer of ownership on the real estate, which constitutes a violation of Article 8 subparagraph 1 of the Act on Special Measures for the Registration of Real Estate, the price received from a third party under a resale contract shall not be acquired by "an act of failing to register the transfer of ownership pursuant to the first contract" subject to punishment under Article 48 of the Criminal Act, so it shall not be subject to confiscation

Article 48 of the Criminal Act, Articles 2(2) and 8(1) and (2) of the Act on Special Measures for the Registration of Real Estate

Defendant

Prosecutor and Defendant

Attorneys Yellow-Gyeong et al.

Changwon District Court Decision 2007No900 decided August 16, 2007

The conviction part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the Changwon District Court Panel Division. The prosecutor's appeal is dismissed.

The grounds of appeal are examined.

1. Judgment on the Defendant’s grounds of appeal

A. As to the establishment of a crime of violating the Act on Special Measures for the Registration of Real Estate

After recognizing the facts as stated in its reasoning based on the adopted evidence, the court below rejected the defendant's argument in the grounds of appeal disputing the fact-finding and decision of the court below is just and acceptable, and there is no error in the misapprehension of legal principles or the rules of evidence as alleged in the grounds of appeal, as otherwise alleged in the grounds of appeal, in light of the evidence duly adopted by the court below, there is no error in the misapprehension of legal principles or the rules of evidence against the rules of evidence, as otherwise alleged in the grounds of appeal.

The Supreme Court precedents invoked by the defendant in the appellate brief are inappropriate to be invoked because they differ from this case.

B. As to collection

According to Article 2(2) of the Act on Special Measures for the Registration of Real Estate (hereinafter “the first contract”) where a person who entered into a contract with a third party to acquire the ownership of real estate (hereinafter “the first contract”) intends to enter into a new contract with a third party to acquire the ownership of the real estate after the date on which the performance of the consideration in return for the contract is completed, he/she shall file an application for the registration of ownership transfer pursuant to the first contract before entering into the resale contract. According to Article 8(1) of the same Act, if a person fails to file an application for the registration of ownership transfer pursuant to the first contract for the purpose of evading tax imposition, obtaining profits from price fluctuation between different points, or evading restrictions on the law regulating the alteration of rights, such as ownership, in such cases, he/she shall be subject to criminal punishment. Accordingly, the amount received from a third party under the resale contract cannot be deemed to have been acquired due to the failure of the registration of ownership transfer pursuant to the first contract, and thus, it cannot be confiscated or collected pursuant to Article 48(1)2) and (2) of the Criminal Act.

Nevertheless, the court below collected an amount equivalent to the price received by the defendant from leap development under the resale contract of this case under Article 48 (1) 2 and (2) of the Criminal Act. The court below erred by misapprehending the legal principles on additional collection under Article 48 (1) 2 and (2) of the Criminal Act, and it is obvious that this affected the judgment. Thus, the ground of appeal pointing this out is with merit.

2. Judgment on the grounds of appeal by the prosecutor

The court below rejected the prosecutor's appeal on the ground that the evidence presented by the prosecutor alone did not prove that the facts charged with forging private documents and uttering of falsified documents are beyond reasonable doubt. In light of the records, the above judgment of the court below is justified and there is no violation of the rules of evidence.

3. Conclusion

Therefore, the part of the judgment of the court below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. The prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)