Defendant 1 and one other

Defendants

Hack Hack

Attorney Jeong Jong-won

Gwangju District Court Decision 2006Kadan161, 2006 Godan427 (Consolidated), 2006 Godan633 (Consolidated) Decided January 19, 2007

Of the judgment below, the part on Defendant 2 shall be reversed.

Defendant 2 shall be punished by imprisonment for six months.

The number of days of detention prior to the judgment of the court below shall be included in the above sentence.

However, the execution of the above punishment shall be suspended for one year from the date this judgment becomes final and conclusive.

Defendant 1’s appeal is dismissed.

1. Summary of grounds for appeal;

A. Grounds for mistake of facts (Defendant 2)

Although Defendant 2 sold to Defendant 1 the 15 parcel of land 174,299 square meters (hereinafter “instant real estate”) on the 15 parcel of land reclaimed in the 15 parcel of land (number 1 omitted), in conspiracy with Defendant 1, Defendant 2 merely purchased the instant real estate in his own mother’s name in order to acquire the instant real estate, and there was no “the purpose of acquiring profits from tax evasion or price fluctuations between different points of time” as provided in subparagraph 1 of Article 8 of the Act on Special Measures for the Registration of Real Estate. However, the lower court erred by misapprehending the facts, thereby adversely affecting the conclusion of the judgment, by recognizing that Defendant 2 had committed the instant crime in collusion with Defendant 1 for the aforementioned purpose as stated in its reasoning.

B. misunderstanding of legal principles (Defendant 2)

In light of the following, Defendant 2 cannot be found guilty of the facts charged in this case. However, the lower court erred by misapprehending the legal doctrine on the Act on Special Measures for the Registration of Real Estate, thereby adversely affecting the conclusion of the judgment by finding the Defendant guilty of the facts charged.

(1) The provisions of the Act on Special Measures for the Registration of Real Estate are premised on the case where an application for the registration of ownership transfer for the pertinent real estate is possible. Defendant 2 cannot file an application for the registration of ownership transfer because it is impossible to issue the qualification certificate for acquisition of real estate, and thus, Article 2(

(2) Article 2(3) of the Act on Special Measures for the Registration of Real Estate provides that an application for the registration of ownership transfer shall be filed within 60 days from the date on which the performance of the consideration for the contract first concluded is completed. Since Defendant 2 fails to complete the remainder payment to Nonindicted 2, the seller, Defendant 2, Defendant 2,

(3) On the ground that Nonindicted 2 sold the instant real estate to Nonindicted 3 through Defendant 1 and completed the ownership transfer registration, Defendant 2’s proof of the content that included the purpose of cancelling the sales contract (hereinafter “instant contract”) that was concluded with respect to the instant real estate on or around September 30, 2004, the instant contract was lawfully rescinded. Thus, Defendant 2 is not obligated to apply for ownership transfer registration pursuant to the proviso of Article 2(1) of the Act on Special Measures for the Registration of Real Estate, as long as he sent it to Nonindicted 2 on or around September 30, 2004.

(4) Since Defendant 2 was merely the representative of Nonindicted 1, the purchaser of the instant real estate, Defendant 2 does not constitute “a person who entered into a contract with the purport to have the ownership of the instant real estate transferred” under the Act on Special Measures for the Registration of Real Estate. Even if Defendant 2, even if the instant real estate was the actual purchaser of the instant real estate, as long as the said Defendant entered into the instant contract with Nonindicted 1, the said Defendant cannot directly file for the registration of ownership transfer with Nonindicted 2

C. The defendant's assertion of unfair sentencing (the defendant)

The punishment sentenced by the court below against the defendants (defendant 1: 2 years of probation, probation, community service order 160 hours, defendant 2: 2 years of probation) is too unreasonable.

2. Determination

A. Judgment on the assertion of mistake of fact

(1) Defendants’ assertion

(A) Defendant 1

① After purchasing the real estate of the Jeonnam-gun, the Defendants intended to divide profits from the resale of the real estate by pre-sale of unregistered real estate, and Defendant 2 purchased the instant real estate from Nonindicted 2 through the brokerage of Defendant 1.

② Defendant 2 delegated Defendant 1 with the authority to sell the instant real estate as he did not easily find the purchaser of the instant real estate even though the down payment of the instant contract and the remainder payment of the first intermediate payment were the key to sell the said real estate, and Defendant 2, instead of his power of delegation, set up two copies of a sales contract with the upper limit of KRW 28,000 per square year and KRW 29,000 per square year, respectively.

③ From the end of August 2004 to the beginning of September 2004, Defendant 1 sold the instant real estate in KRW 585,00,000 to Nonindicted 3, and received KRW 60,000 on the day of the said contract, and put the instant real estate to Defendant 2.

④ Defendant 1 received full payment of the remainder of the sales price from Nonindicted 3 and paid the intermediate payment and the balance to Nonindicted 2 pursuant to the instant contract, and received documents necessary for Nonindicted 2’s registration of transfer of ownership from Nonindicted 2, and completed the registration of transfer of ownership to Nonindicted 3 around September 20, 204.

⑤ During this process, there was a dispute among the Defendants as to the distribution of profits accrued from the resale of the instant real estate, and the Defendant’s realization filed a complaint with the Defendants.

(B) Defendant 2

① Defendant 2 purchased the instant real estate on behalf of Nonindicted 1 under the brokerage of Defendant 1, but was unable to complete the registration in the name of Nonindicted 1 or Defendant 2 due to the fact that the qualification certificate for acquisition of farmland was not issued.

② As such, Defendant 1 sold KRW 29,00 per square year to himself/herself, he/she can make profits by selling KRW 30,000 per square year and demanded the sale of the instant real estate over several occasions, Defendant 1 inevitably sold to Defendant 1 and received KRW 60,000 as a down payment, and then drafted a sales contract.

③ However, since the method of calculating the sales price of the instant real estate is complicated, a sales contract was prepared in which the initial sales price was KRW 584,824,000, and subsequently, the sales contract was prepared in which the error was delayed and the sales contract was 637,550,000 for the sales price was re-established.

④ Defendant 2 filed a complaint with Nonindicted 2, etc. on the ground that Nonindicted 2 arbitrarily sold the instant real estate to Nonindicted 3 without his consent, when the dispute with Nonindicted 2 continued with Defendant 1 while the said sales contract was not carried out as soon as possible. Around September 21, 2004, Defendant 2 demanded Nonindicted 1 to implement the instant contract on behalf of Nonindicted 2, on the part of Nonindicted 2 to resume the original contract with Nonindicted 2. On September 21, 2004, Defendant 1 unilaterally informed Nonindicted 3 of the fact that he unilaterally sold the instant real estate and completed the registration thereof on September 30, 2004, Defendant 2 filed a complaint against Nonindicted 2, etc. on the ground that he voluntarily sold the instant real estate to Nonindicted 3 without his consent under the circumstances in which part of the intermediate payment was already paid.

(2) Facts of recognition

According to the evidence duly admitted and examined by the court below, the following facts are recognized:

① Defendant 2, after obtaining a licensed real estate agent’s license on around 1985, is engaged in real estate brokerage business and is in the representative of a construction company, and is in mother and child relationship with Nonindicted Party 1 (the date of February 15, 1926).

② Defendant 2 purchased the instant real estate from Nonindicted 2 on August 6, 2004 through Defendant 1’s brokerage with a down payment of KRW 40 million (one day payment) and KRW 60 million (payment date August 13, 2004), KRW 121,194,400 (payment date September 30, 2004) and the remainder of KRW 121,194,40 (payment date November 30, 2004), total sales amount of KRW 321,194,40 (23,000 per square day).

③ In relation to the instant contract, Nonindicted Party 2 stated to the effect that Nonindicted Party 1 did not reach any call, and that Defendant 2 was aware of Nonindicted Party 1, the purchaser of the instant real estate, before obtaining the certification of the content of Nonindicted Party 1 from September 21, 2004, and before obtaining the certification of the content of Nonindicted Party 1’s name (No. 40 of the Investigation Record).

④ At the time of the instant contract, Defendant 2 stated that “The seller shall cooperate when the purchaser demands a certificate of acquisition of farmland, even if the seller pays the first intermediate payment prior to the payment date of the remainder,” and the said Defendant was unable to transfer the instant real estate in his own name or Nonindicted 1’s name on the ground that the certificate of acquisition of farmland was not issued.

⑤ Defendant 2 paid the first intermediate payment on or around August 9, 2004. Nonindicted 2 agreed to additionally pay KRW 60,000,000 to the policeman on August 10, 2004, on the ground that the value of the instant real estate increases, etc., and then issued promissory notes with face value of KRW 60,00,000 at face value as of November 10, 2004.

④ On August 31, 2004, Defendant 2 issued a sales contract to Defendant 1 as “the seller: Nonindicted 2’s agent 1”; and Defendant 1 as “Defendant 2’s agent” and “Defendant 1,” and the head of one of them stated as “the total purchase price of KRW 584,824,00 (hereinafter referred to as KRW 28,000), the remainder of KRW 624,824,00 (date of payment September 13, 2004), and the contract date of KRW 204,” and the rest of one, as “the total purchase price of KRW 637,50,000 (Seoul KRW 29,000), the remainder of KRW 67,57,500,000, KRW 577,500,000 (date of September 13, 204; hereinafter referred to as “the payment date”).”

7) From the end of August 2004 to the beginning of September 2004, Defendant 1 sold to Nonindicted 3 the total purchase price of KRW 585,00,000 (in the case of calculating KRW 28,000 per square day, the original amount shall be KRW 584,824,000,000 (in the case of calculating KRW 28,000 per square day, the original amount shall be rounded down; however, the unit below KRW 1,00,00 has been entered into an agreement) without the intermediate payment, the remainder of KRW 5,15,00,000 without the intermediate payment (as of September 13, 2004, the payment date) (hereinafter “instant resale agreement”). At the time of the said contract, Defendant 1 received KRW 60,000,000 from the down payment and received the remainder of KRW 5,000 after receiving it.

④ Defendant 2 demanded Defendant 1 to describe the personal information of Nonindicted 3 on or around September 10, 2004 (section 281 of the Investigation Record). Defendant 1 received all remainders from Nonindicted 3 on or around September 13, 2004 through September 20, 2004 (Nonindicted 2 was paid the remainder of intermediate payments and remainders on or around September 20, 2004). However, Defendant 1 paid the remainder of intermediate payments and remainders to Nonindicted 2 on or around September 20, 204 in lieu of Nonindicted 3’s payment of remainders of intermediate payments and remainders in accordance with the instant contract to the effect that Nonindicted 2 paid the remainder to Nonindicted 2 on or around September 204. However, Defendant 1 paid KRW 50,500,000 (the total purchase price of the instant real estate under the instant contract to be paid from KRW 250,500,000,000 on the condition that it would not raise any objection.

① Defendant 2 urged Nonindicted 2 to perform the instant contract in the name of Nonindicted 1 on September 21, 2004, and sent Nonindicted 3, around the 30th of the same month, without his consent, a certificate of each content to enforce the liability for the portion of the instant real estate that was transferred to Nonindicted 3, and filed a complaint with Nonindicted 3 as a crime of breach of trust, etc., followed, Defendant 2 filed a provisional disposition against Nonindicted 3 on the instant real estate.

① From the end of 2005 to the beginning of 2006, Defendant 2 agreed with Defendant 1 to receive approximately KRW 1,48,805,60, out of KRW 90,00,00 under the resale agreement of this case.

1) Around August 11, 2004, Defendant 2 purchased 53,789.3 square meters from Nonindicted 6 in the name of “Nonindicted 1 and 3 others” in the name of “Defendant 1 borrowed the name of Nonindicted 5, etc. in the name of “Nonindicted 1 and 4,” and around August 14, 2004, the name of Defendant 2 purchased 53,789.3 square meters from Nonindicted 6 in the name of “Nonindicted 1 and 3 others” in the name of “Nonindicted 5,851.3 square meters in the name of Defendant 1, etc.”

(3) Determination

(A) Defendant 2 engaged in the real estate brokerage business for a long time, and Defendant 2 appears to have purchased the instant real estate in consideration of the unregistered resale, even though he sufficiently recognizes that the registration of ownership transfer for the instant real estate cannot be completed due to the relationship that he did not obtain the qualification certificate for acquisition of farmland, on the grounds that Defendant 2 purchased the instant real estate several occasions. The matters stated in the special clause of the sales contract under the instant contract are supported by the provisions of paragraph (3).

(B) If Defendant 1 purchased the instant real estate from Defendant 2 as alleged by Defendant 2, Defendant 1 purchased the instant real estate from Defendant 2 on or around August 31, 2004, Defendant 1 sold the instant real estate at KRW 28,000 per square meter around September 2, 2004, after which the instant real estate was purchased from Defendant 2. However, Defendant 2 asserted that Nonindicted 3 purchased the instant real estate at KRW 30,000 per square meter, and there is no objective document to prove otherwise, and Nonindicted 3 consistently purchased the instant real estate at KRW 28,00 per square meter since the investigative agency, it is difficult to conclude that Defendant 1, as well as that Defendant 1, who prepared a sale agreement with Nonindicted 2,00, which was considerably more favorable than Defendant 1’s sales agreement, based on the fact that the instant real estate was purchased from Nonindicted 2, 200, which was prepared for a long period of time, and that it was considerably more favorable for Defendant 1 to purchase the instant real estate from Defendant 2.

(C) Meanwhile, as seen earlier, Defendant 2 appears to have purchased the instant real estate from Nonindicted 2, the original owner of the instant real estate in mind with the intention to resell the unregistered real estate to the final buyer even though he was unable to obtain the qualification certificate for acquisition of farmland from the beginning of the beginning to whom he was unable to do so, and even if Defendant 2’s assertion was made, Defendant 1, who purchased the instant real estate from himself at KRW 29,00 on a usual basis, sold it to another KRW 30,000, to the extent that he would pay the purchase price to him, and thus, Defendant 2 was anticipated to have certain extent to resell the said real estate through Defendant 1 (only if he delegated the right to sell the said real estate, such as Defendant 1’s assertion, it is difficult to say that the said real estate will be resold more if he delegated the right to sell the said real estate to the Nonindicted 2, 3,000, as well as the telephone number on September 10, 204, it is difficult to find out the following issue of the instant phone number by Defendant 2.

Thus, it is reasonable to view that Defendant 2 had already been aware of the series of the process of resale of the instant real estate to Nonindicted 3 through Defendant 1, and this would rather have been the first intention of the said Defendant. However, Defendant 2, from September 21, 2004 to September 21, 2004, demanded Nonindicted 2 to perform the contract, or demanded Nonindicted 2 to enforce the liability for the rescission of the contract, and filed a complaint against Nonindicted 2 for the crime of breach of trust, etc.

Therefore, Defendant 1’s legal action against Defendant 2, who sold the instant real estate to Defendant 1 while the agreement was not carried out as soon as the agreement was not carried out, appears to be more persuasive as to Defendant 1’s assertion that, in order to proceed again with the instant agreement with Nonindicted 2, Defendant 1 sent content certification to Nonindicted 3 and urged Nonindicted 2 to implement the instant agreement, and subsequently forced Nonindicted 2 to enforce and file a complaint against the termination of the agreement. Rather, Defendant 1’s assertion that the conflict arising from the distribution of resale marginal profits was the cause of proof of content and accusation, seems to be more persuasive.

(D) In addition to the above circumstances, the following circumstances acknowledged by the record, i.e., Defendant 1’s remaining payment date on September 13, 2004, which was the same as the remaining payment date indicated in the sales contract, which was set from Defendant 2 to Defendant 2 around August 31, 2004, sold the instant real estate to Nonindicted 3, and if Defendant 2, as Defendant 2’s assertion, sold the instant real estate to Defendant 1 at KRW 29,000 on a usual basis, it is reasonable to claim the remainder of the sales price. However, in light of the investigation into the instant case, it is reasonable that the Defendant agreed that the Defendants would not have any problem any longer after the Defendants divided the proceeds from the resale under the resale contract, the Defendant’s assertion that Defendant 1 was delegated with the authority to sell the instant real estate by Defendant 2 is persuasive.

(E) Meanwhile, while Defendant 1 entered into the resale contract of this case on September 2, 2004 and delivered 60 million won of the down payment to Defendant 2 around August 31, 2004, the fact that Defendant 1 received 60,000 won of the down payment from Nonindicted 3 and delivered it to Defendant 2 is logical contradictory. However, in addition to the various circumstances prior to the foregoing, the memory of the parties can be inaccurate after a considerable period of time has already elapsed since the resale contract of this case was already entered into, and the date of the accurate resale contract cannot be determined due to the destruction of the contract under the resale contract of this case. Such circumstances alone do not deny the credibility of the above Defendant’s lawsuit.

(F) Ultimately, in full view of the above circumstances, it is reasonable to view that Defendant 2, through the public invitation of Defendant 1 to resell the instant real estate without registration and divide profits therefrom, delegated the right to sell the instant real estate to that person to Nonindicted 3, and thus, Defendant 2’s above assertion is without merit.

B. Judgment on misapprehension of legal principles

(1) Determination on the first argument

Article 8 of the Farmland Act provides that a person who intends to acquire farmland shall apply for the issuance of a qualification certificate for acquisition of farmland by preparing an agricultural management plan which includes matters such as a plan for securing labor force and agricultural equipment suitable for agricultural management of the farmland subject to acquisition, and that when a person who has obtained a qualification certificate for acquisition of farmland applies for the registration of ownership, the person shall attach the qualification

As long as Defendant 2 purchased the instant real estate as farmland, he prepared an agricultural management plan including a plan for securing labor force and agricultural equipment suitable for the agricultural management of the farmland subject to acquisition as seen earlier, and obtained a qualification certificate for acquisition of farmland, and then applies for the registration of ownership transfer under his own name within the period set by the Act on Special Measures for the Registration of Real Estate. If it is impossible to issue the qualification certificate for acquisition of farmland, Defendant 1 should immediately cancel the instant contract and restore the instant real estate to its original state without the obligation to apply for the registration of ownership transfer. However, Defendant 1’s sale of the instant real estate to Nonindicted 3 without completing the registration of his name can not be legally permitted.

Furthermore, as seen earlier, even though Defendant 2 was fully aware that he could not obtain the qualification certificate for acquisition of farmland, Defendant 2 appears to have purchased the instant real estate for the purpose of acquiring its profits by selling it before the registration of acquisition of farmland. Therefore, this part of the allegation by Defendant 2 is without merit.

(2) Judgment on the second argument

Since Defendant 2 delegated the sale of the instant real estate to Defendant 1 and paid the intermediate payment and balance under the instant contract to Nonindicted 2 through Defendant 1 around September 13, 2004 through Defendant 20 on or around September 20, 204, Defendant 2 did not have any reason to the effect that the said assertion is not subject to the Act on Special Measures for the Registration of Real Estate because the seller did not pay any balance to Nonindicted 2.

(3) Judgment on the third argument

The proviso of Article 2(1) of the Act on Special Measures for the Registration of Real Estate stipulates that a contract with the contents of transfer of real estate shall not be subject to the obligation to apply for the registration of transfer of ownership in cases where the contract is revoked, rescinded, or null and void. However, even if Defendant 2 sold the instant real estate to Nonindicted 3 through Defendant 1 and paid the remainder to Nonindicted 2, the contract was fully implemented by paying the remainder amount, and even if Defendant 2 sent a certificate of contents as alleged above on September 30, 2004, it cannot be deemed that the said contract was revoked or rescinded, and there is no other evidence to acknowledge it otherwise, this part of the allegation by Defendant 2 premised on the cancellation of the contract is without merit.

(4) Judgment on the fourth argument

(A) We examine the following facts: (a) at the time of the instant contract, the sales contract states “Defendant 2,” and thereafter, the content certification sent to Nonindicted Party 2, and the accusation filed against Defendant 1, etc. was made in the name of Nonindicted Party 1. In addition, the person liable to file an application for ownership transfer registration under the Act on Special Measures for the Registration of Real Estate refers to the party to the contract whose name is transfer of ownership, such as sale and purchase; (b) if a certain person wants to purchase real estate through another person under the name of the purchaser, the purchaser shall be deemed as the party to the transaction, barring any special circumstance, and the principal cannot be deemed as the party who entered into a contract with the content of ownership transfer.

(B) However, according to the above facts and the evidence of the lower judgment, the following circumstances are recognized.

① Nonindicted 1 and Defendant 2 are in mother and child relationship, and Nonindicted 1, at the time of the instant contract, had a considerable age of 78 years old.

② Although Nonindicted Party 1 stated in the sales contract under the instant contract as a purchaser, it was not involved in the series of processes from the date the instant contract was concluded to the date of resale to Nonindicted Party 3, there was no requisite statement in the qualification of witness, etc. during the investigation process of the instant case, and Defendant 2 agreed not to raise an issue as to the resale of the instant real estate any longer after Defendant 2 acquired benefits from the resale of the instant real estate separately with Defendant 1.

③ As to the reasons why the instant contract was entered into in the name of Nonindicted Party 1, rather than in the name of his own, Defendant 2 changed to the contract that was concluded in the name of the said Nonindicted Party 1, since part of his father’s property was the mother Nonindicted Party 1’s property. However, there were no objective data to recognize that Nonindicted Party 1 was used as the purchase price for the instant real estate, or that the said Defendant was granted the authority to purchase the said real estate by Nonindicted Party 1.

④ In particular, Defendant 1 stated to the effect that, even though there was no different interest as to who is the purchaser of the instant contract, Defendant 2 consistently paid the instant real estate deposit and intermediate payment to the actual purchaser, etc., and Nonindicted 1 was unrelated to the instant contract.

⑤ Although Defendant 2 handled almost all other real estate within the calendar station in which Defendant 2 was involved in the transaction, Defendant 2 was involved in the process of entering into a contract and making payment through Defendant 1, it is questionable whether the purchaser’s name complies with the substantive relation with the buyer’s name, “Non-Indicted 1 and 3” (in the case of Non-Indicted 1, 5 omitted) and “Defendant 1 and Non-Indicted 3” (in the case of Non-Indicted 5,851.7 square meters in the case of Non-Indicted 2, 500 square meters in the case of Non-Indicted 3, 4 omitted). In the case of the instant real estate, there is a question as to whether the buyer’s name, “Non-Indicted 1 and Defendant 2,” written in the name of the buyer, “Non-Indicted 2, 2.”

(C) Comprehensively taking account of these circumstances, although Nonindicted Party 1 stated in the sales contract of this case as a purchaser, Defendant 2 is the actual purchaser of the contract of this case, and there is a special circumstance to regard it as a “person who applied for registration of ownership transfer” who is the subject of the violation of the Act on Special Measures for the Registration of Real Estate. Thus, this part of the allegation by Defendant 2

C. Determination on Defendant 1’s assertion of unreasonable sentencing

In light of the following: (a) the Defendant repeatedly committed the instant crime even though the same and similar criminal records had been multiple times; (b) the circumstances and results leading up to the instant crime; (c) the profits acquired by the said Defendant; and (d) all other conditions that form the basis for sentencing indicated in the record, such as the age, character, conduct, and environment of the said Defendant, the sentence imposed by the lower court is too unreasonable.

D. Determination on Defendant 2’s assertion of unreasonable sentencing

In light of the background and result leading up to the crime of this case, the acquired profit, the fact that the above defendant did not have any force to commit any other crime except twice a fine, and all other conditions that form the basis for sentencing as shown in the records, such as the above defendant's age, character and conduct, and environment, the punishment sentenced by the court below is too unreasonable.

3. Conclusion

Therefore, since the appeal by Defendant 1 is without merit, it is dismissed pursuant to Article 364(4) of the Criminal Procedure Act, and since the appeal by Defendant 2 is well-grounded, the part of the judgment below against Defendant 2 among the judgment below pursuant to Article 364(6) of the Criminal Procedure Act is reversed and it is again decided as follows after the pleading.

Since each corresponding column of the judgment of the court below is the same as that of the judgment below, all of them shall be cited in accordance with Article 369 of the Criminal Procedure Act.

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

Article 8 subparag. 1 and Article 2(3) of the Act on Special Measures for the Registration of Real Estate; Article 30 of the Criminal Act; Selection of Imprisonment;

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62 (1) of the Criminal Act (Consideration Grounds, etc. for Destruction)

Judges Lee Jae-jin (Presiding Justice)