[1] The meaning of "the act of entering into a contract for land, etc. without permission for land transaction" punished as a violation of the former National Land Planning and Utilization Act

[2] The case holding that where a sale contract is concluded under another person's name, which satisfies the requirements for permission even though the land transaction permission requirements under the former National Land Planning and Utilization Act and the Enforcement Decree of the same Act were not met when purchasing the land located within the land transaction permission zone, the above act is intended to escape the land transaction permission regarding the above sale contract, and thus constitutes "the case where the land transaction contract is concluded without the land transaction permission" which is subject to punishment

[1] "Act of entering into a contract for land, etc. without permission for land transaction" punished for a violation of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009) refers to an act of entering into a contract without permission for land transaction under the aforementioned Act from the beginning, and it does not constitute an act of entering into a contract on the premise that permission should be granted.

[2] The case holding that where a sale contract is concluded under another person's name, which satisfies the requirements for permission for land transaction as provided by the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009) and the Enforcement Decree of the same Act (amended by Presidential Decree No. 19130 of Nov. 11, 2005), while purchasing land located within a zone subject to permission for land transaction, the above act is intended to escape from permission for land transaction as a matter of course, and thus constitutes "the case where a land transaction contract is concluded without permission for land transaction" which is subject to punishment under the above Act

[1] Articles 18(1) and 141 subparag. 6 (see current Article 141 subparag. 5) of the former National Land Planning and Utilization Act (amended by Act No. 9442, Feb. 6, 2009) / [2] Articles 118(1) and 141 subparag. 6 (see current Article 141 subparag. 5) of the former National Land Planning and Utilization Act (amended by Act No. 9442, Feb. 6, 2009); Article 117 of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 19130, Nov. 11, 2005)

[1] Supreme Court en banc Decision 90Da12243 delivered on December 24, 1991 (Gong1992, 642) Supreme Court Decision 94Do1878 delivered on October 7, 1994 (Gong1994Ha, 3023) Supreme Court Decision 94Do2091 Delivered on April 7, 1995 (Gong195Sang, 1908)

Defendant

Prosecutor

Suwon District Court Decision 2009No528 decided January 7, 2010

The non-guilty part of the judgment of the court below shall be reversed, and that part of the case shall be remanded to the Suwon District Court Panel Division.

The grounds of appeal are examined.

According to the reasoning of the judgment below, the summary of the violation of the National Land Planning and Utilization Act (hereinafter “National Land Planning Act”) among the facts charged in this case is that the parties who intend to enter into a contract to transfer the ownership of the land located within the land transaction permission zone jointly obtain permission from the competent authority under the conditions prescribed by law, but the Defendant did not obtain permission from the competent authority while entering into the instant contract to purchase each of the instant land located within the land transaction permission zone from Nonindicted 1 and 2 on March 23, 2005, and did not obtain permission from the competent authority. The court below acquitted the Defendant of the violation of the National Land Planning and Utilization Act on the ground that the instant contract cannot be deemed as a contract to exclude or escape the land transaction permission itself, and that the Defendant entered into the instant contract on the premise that the land transaction permission was obtained, based on the premise that the land transaction permission was concluded.

However, we cannot accept the above determination by the court below for the following reasons.

Any act of entering into a contract for land, etc. without any land transaction permission, which is punishable as a violation of the National Land Planning and Utilization Act, refers to an act of entering into a contract with the intention of excluding or evading a land transaction permit under the National Land Planning and Utilization Act from the beginning, and it does not constitute an act of entering into a contract under the premise of obtaining a permit (see, e.g., Supreme Court en banc Decision 90Da12243, Dec. 24, 191; 94Do2091, Apr. 7, 1995).

However, according to the reasoning of the judgment below, in the conclusion of the instant contract to purchase each of the instant land within the land transaction permission zone from Nonindicted 1 and 2, the Defendant did not meet the requirements for residence under the criteria for land transaction permission under the National Land Planning Act, i.e., a person who has been registered as a resident for a certain period retrospectively from the date of application for land transaction permission, and who actually resides in the relevant region. As such, Nonindicted 3, who meets the above residential requirements, forged the instant contract under the name of Nonindicted 3 and delivered it to Nonindicted 1, who is unaware of such circumstances. In light of the aforementioned legal principles, the Defendant’s above act of the Defendant, who entered into a contract under the name of another person who satisfies the requirements for land transaction permission under the National Land Planning Act, would escape from the land transaction permission, and thus constitutes a case where the land transaction contract is concluded without any land transaction permission under the National Land Planning Act, which is subject to punishment under the National Land Planning Act.

Nevertheless, the court below rendered a not-guilty verdict on the violation of the National Land Planning and Utilization Act solely on the grounds stated in its reasoning. The court below erred by misapprehending the legal principles on the deprivation of land transaction permission under the National Land Planning and Utilization Act, which affected the conclusion of the judgment. The ground of appeal

Meanwhile, the facts that the court below found the defendant guilty and the violation of the National Land Planning and Utilization Act that found the defendant not guilty are concurrent crimes under the former part of Article 37 of the Criminal Act. In the case of this case where only the prosecutor appealeds the acquittal portion, the conviction portion which the both parties did not appeal has become separated by the expiration of the period of appeal, and the prosecution on the acquittal portion has been pending in the court of final appeal. Thus, the part which was reversed by the court of final appeal is only reversed (see, e.g., Supreme Court en banc Decision 91Do1402, Jan. 21, 1992; Supreme Court Decision 2001Do70, Jun. 1, 2001).

Therefore, the non-guilty part of the judgment below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)