Defendant

Prosecutor

Jin-ship

Chuncheon District Court Decision 2003Ma108 Delivered on April 21, 2005

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

In light of the consistent statement from the investigation agency of Nonindicted Party 1 to the original trial court and the contents of the contract, it is evident that Nonindicted Party 1 had no implied consent to the Defendant’s prior registration request without being paid the balance of KRW 132.6 million when selling real estate owned by the Defendant. In addition, Nonindicted Party 1 deceiving the staff of the certified judicial scrivener office and completed the registration of ownership transfer against Nonindicted Party 1’s will as if the Defendant had prior registration agreement, thereby deceiving the staff of the certified judicial scrivener office and completing the registration of ownership transfer against Nonindicted Party 1’s will.

2. Determination

A. Summary of the facts charged

When the Defendant purchased the real estate owned by Nonindicted Party 1 in KRW 350 million, the Defendant made a false report to a public official on November 18, 2002, and made a false report to enter false facts in the real estate register, which is the original copy of a authentic deed, and exercised it by having a public official keep the real estate register, i.e., on November 18, 2002, after concluding an agreement to pay on November 5, 2002.

B. Judgment of the court below

The court below found the Defendant not guilty on the ground that the seller could have impliedly consented to the registration of ownership transfer even before receiving the balance, and it cannot be deemed that the sale and purchase or the agreement on real rights did not exist objectively even if based on the above facts charged.

C. Determination of party members

(1) Whether Nonindicted Party 1’s implied consent to the registration of a ship was obtained

In light of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, i.e., (i) the defendant completed the registration of ownership transfer of the real estate of this case prior to the payment of balance, (ii) the non-indicted 1 arbitrarily completed the registration of ownership transfer by using the fact that the non-indicted 1 delivered all the documents necessary for the registration of ownership transfer to the certified judicial scrivener office on November 5, 2002, to the non-indicted 1’s office, and asked the buyer to proceed with the registration of ownership transfer of this case’s telephone contact after receiving documents necessary for the registration of ownership transfer of this case’s telephone contact; (iii) if the buyer first transferred the registration of ownership to a third party without paying any balance, the seller is likely to lose ownership without obtaining any profits from the balance; and thus, (iii) the seller and the buyer did not consent to the registration of ownership transfer of this case’s remaining 100 million won by taking into account the fact that the seller did not consent to the registration of ownership transfer of this case’s remaining 100 billion won and 100 billion won.

(2) Whether the registration of this case constitutes false entry by false report

In light of the aforementioned evidence: (a) Nonindicted Party 1 appears to have concluded an agreement on the transfer registration of the ownership of the instant real estate on November 5, 202 with Nonindicted Party 1; (b) concluded an agreement with Nonindicted Party 2 to entrust the Defendant with the registration of the remainder to Nonindicted Party 1’s office on the condition that Nonindicted Party 1 resides in Sungnam; (c) concluded an agreement on the transfer registration of the ownership of the instant real estate with Nonindicted Party 2’s office on the condition that it would be difficult for Nonindicted Party 1 again to pay the balance on the following day; and (d) concluded an agreement on the transfer registration of the ownership of the instant real estate with Nonindicted Party 1’s office to accept the outstanding balance on the grounds that the Defendant would not have received any payment of the balance from Nonindicted Party 1, 200; and (e) concluded an agreement on the transfer registration of the ownership of the instant real estate with Nonindicted Party 2, the Defendant would not be deemed to have received any balance from Nonindicted Party 1, 2000, to have agreed on the transfer of ownership.

(3) Sub-determination

Thus, there is no error in the court below's fact-finding and decision-making process that found the defendant not guilty on the ground that there is no evidence that the registration of this case constitutes a false entry. Therefore, the prosecutor's appeal is without merit.

3. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Haak-gu et al. (Presiding Judge)