[1] Where, at the time of real estate sale, a seller is recognized to have a duty of disclosure under the principle of trust and good faith and such violation constitutes a "deficition"

[2] In a case where the Defendant, as a real estate broker, did not notify the buyer of the fact that he/she secured the right to move into an apartment and reselled the apartment amount of KRW 295 million, the case affirming the judgment below which held that the Defendant did not constitute a crime of fraud because it is difficult to view that he/she acquired the difference of KRW 45 million by deceiving the buyer

[1] Article 347 (1) of the Criminal Code / [2] Article 347 (1) of the Criminal Code, Article 325 of the Criminal Procedure Act

[1] Supreme Court Decision 91Do2698 delivered on December 24, 1991 (Gong1992, 727) Supreme Court Decision 2001Do3349 Delivered on September 25, 2001, Supreme Court Decision 2005Do5021 Delivered on November 25, 2005, Supreme Court Decision 2008Do1652 Delivered on May 8, 2008

Defendant

Prosecutor

Attorney Yang Young-young et al.

Seoul Eastern District Court Decision 2010No38 decided April 9, 2010

The appeal is dismissed.

We examine the grounds of appeal.

In the course of selling and selling real estate, the seller has a duty to notify the buyer in advance of such circumstances in light of the principle of trust and good faith if, by failing to notify the buyer of any specific circumstances, the effect of the sale and purchase of the real estate or the performance of obligations arising from the sale and purchase could cause danger that the buyer would not secure his/her rights to the subject matter of sale and without notifying the buyer of such circumstances. In cases where it is evident in light of the empirical rule that the buyer would not enter into the sale and purchase contract if he/she was notified of such circumstances, or would not pay the purchase and sale, the buyer would have a duty to notify the buyer of such circumstances. Thus, the seller's failure to notify the buyer of such circumstances constitutes a crime of fraud, but it may not affect any legal relationship arising from the sale and purchase, and thus, the seller is not obligated to notify the buyer of such fact (see, e.g., Supreme Court Decisions 91Do2698, Dec. 24, 191; 201Do349, Sept. 25, 2001).

In light of the above legal principles and the records, the court below acknowledged the facts as stated in its decision after compiling the adopted evidence, and judged that it is difficult for the victim to take advantage of the difference between the purchase price of KRW 295 million and the purchase price of KRW 295 million in the long-term apartment site in the long-term area, and concluded the sales contract in this case without any inquiry as to the right to move in or the price of the right to move in in by Nonindicted Party 1, the defendant did not notify the victim of the fact that he purchased and sold the right to move in in the long-term area of KRW 33 billion in the long-term apartment site in the non-indicted 2's long-term area in lieu of the right to move in by the non-indicted 1, thereby securing and selling the right to move in to the non-indicted 2's long-term apartment site in the long-term area of KRW 295 million,5 million, which is the purchase price of the right to move in from the victim. The judgment of the first instance that acquitted the defendant is justifiable, and there is no violation of law as alleged in the grounds for appeal.

With respect to the guilty portion of the lower judgment, no grounds of appeal are stated in the petition of appeal or the appellate brief.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)