[1] The case where the act does not constitute “an act of preparing a false certificate of guarantee” under Article 13(1) of the former Act on Special Measures for the Registration, etc. of Transfer of Ownership of Real Estate; and even if the date or cause of transfer of real estate is recognized differently from that of the real estate, it cannot be deemed that there was an awareness of the meaning

[2] In a case where a certificate of guarantee stating the date of the legal act is retroactively stated as the date subject to the Act on Special Measures, even though a real estate was actually acquired due to a legal act after January 1, 1986, which is not subject to the Act on Special Measures for the Registration, etc. of Ownership of Real Estate, whether the act of preparing a false certificate of guarantee under Article 13(1)3 of the Act on Special Measures for the Registration of Ownership

[1] Articles 1, 3, 6, 10, and 13(1)3 of the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate / [2] Article 13(1)3 of the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate (Law No. 4502, Dec. 31, 1994)

[1] Supreme Court Decision 84Do1177 delivered on July 24, 1984 (Gong1984, 1517), Supreme Court Decision 84Do81 delivered on September 11, 1984 (Gong1984, 1670), Supreme Court Decision 85Do1308 delivered on September 10, 1985 (Gong1985, 1369), Supreme Court Decision 96Do2183 delivered on October 25, 1996 (Gong196Ha, 3504) / [2] Supreme Court Decision 90Do1031 delivered on August 24, 190 (Gong190, 2050), Supreme Court Decision 98Do4819 delivered on March 23, 199

Defendant

Defendant

Attorney Examination Number

Gwangju High Court Decision 2000No74 delivered on August 9, 2001

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

We examine the grounds of appeal.

1. The judgment of the court below

According to the reasoning of the judgment of the court below, the court below maintained the first instance court's finding that the defendant did not purchase and sell the above 10 piece of land at the defendant's house located in the Masan-gun (hereinafter omitted) around 10:00 on September 1993, the first instance court's decision [attached Form 1] to 1 through 10 piece of land, the owner of which is the deceased non-party 1, 2, 3, and 4 on the register and the register, without being aware that he donated or sold it to the deceased non-indicted 1, 3, and the deceased non-indicted 4, the owner of which is the owner on the register and the register, as stated in the first instance court's [Attachment Form 1], each of which was prepared as if he purchased and sold as stated in the first instance court's [Attachment 3], and that the defendant violated the above 9-year special measures for the transfer of the old real estate ownership, etc. (hereinafter "Special Measures Act", 194.1).

2. Judgment of the Supreme Court

A. As to the land Nos. 1 through 5 of the first instance judgment (attached Form)

In light of the purport of Articles 1, 6, and 10(1) of the Act on Special Measures, the entry of the transferor or transferee in the guarantee certificate under the above Act includes not only the transferor or transferee, but also his heir, and the date of transfer also includes the same as the juristic act between them before December 31, 1985, which is subject to the above Act, so long as the entry of a guarantee certificate was done by specifying the date prior to the date of transfer as appropriate and the registration was made based on it, it shall not be deemed that the entry of a false guarantee certificate constitutes a case where there is no possibility of undermining the legitimate rights of others (see, e.g., Supreme Court Decisions 84Do81, Sept. 11, 1984; 85Do1308, Sept. 10, 1985; 198Do1308, Apr. 18, 1988).

According to the records, it is recognized that Non-Indicted 1 donated the above real estate to Busan in 1969, and Non-Indicted 2 was the inheritor of Non-Indicted 1. If the factual relations are true, even if the defendant prepared and ordered a guarantee of guarantee to the effect that the above clan purchased the above real estate from Non-Indicted 1 or his heir from Non-Indicted 2 from 1983 to 1984, it shall not be deemed that the defendant had awareness of the falsity as stipulated in Article 13(1) of the Act on Special Measures.

Therefore, the court below's determination that the act of preparing a guarantee letter on the above real estate constitutes a violation of the Act on Special Measures is erroneous in the misapprehension of the legal principles of the Act on Special Measures, or by failing to exhaust all necessary deliberations as to the recognition of falsity or by misunderstanding the legal principles of the Act on Special Measures.

B. As to the land Nos. 6 through 10 of the first instance judgment (attached Form)

Article 3 of the Act on Special Measures provides that the Act on Special Measures shall apply to the real estate actually transferred due to a juristic act, such as sale and purchase, donation, exchange, etc. before December 31, 1985, and the Act on Special Measures to the inherited real estate. Thus, a juristic act after January 1, 1986 cannot be subject to the Act on Special Measures, but a false statement is made on the date of the juristic act, and even if it conforms to the indication of the register of real estate recorded as a result, it constitutes Article 13(1)3 of the Act on Special Measures even if it conforms to the substantive relation (see Supreme Court Decisions 90Do1031, Aug. 24, 199; 98Do481, Mar. 23, 199).

According to the records, the above clan decided to terminate the title trust on October 15, 1989 with respect to the above real estate which was held in title trust with Nonindicted 2, Nonindicted 3, or Nonindicted 4, and it can be known that it was registered under the name of the clan pursuant to the Act on Special Measures on December 31, 1993. Thus, the cancellation of the title trust between the clan and Nonindicted 2, 3, and 4 was occurred after December 31, 1985, which is the deadline for application of the Act on Special Measures on Special Measures. Thus, the defendant's act of preparing and preparing a letter of guarantee to the effect that the above clan purchased the above real estate on October 15, 1983, which is prior to the deadline for application of the Act on Special Measures on Special Measures on Special Measures on Special Measures on Special Measures on Special Measures on Special Measures on Special Measures on Special Measures.

Although the reasoning of the court below is not appropriate, the conclusion that the defendant guilty of this part of the defendant's act is correct, and there is no error in the misapprehension of legal principles as to the violation of special measures, as alleged in the grounds of appeal

4. Therefore, the judgment of the court of first instance among the facts charged in this case cannot be maintained any more as to the violation of the Act on Special Measures for Real Estate Nos. 1 through 5. On the other hand, since the above part and the remaining facts found guilty constitute concurrent crimes under the former part of Article 37 of the Criminal Act and the judgment of the court below is reversed in its entirety, and it is remanded to the court below for a new trial and determination, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-hun (Presiding Justice)