Defendant

Defendant

Scareman

Attorney Cho Jong-soo in charge of the General Law Office in the 21st century

Gwangju District Court Decision 2010 Godan251 Decided August 26, 2010

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

① The instant land transaction contract between the Defendant and the victim is null and void by a contract that excludes permission from the beginning, and thus, the Defendant is not the subject of breach of trust since it does not have the duty to implement the procedure for the registration of ownership transfer, and even if not, the Defendant already expressed his intent of cancellation (e.g., cancellation) due to the victim’s fraud as to bearing capital gains tax or mistake before establishing a collateral security or completing the registration of ownership transfer for each of the instant land to a third party. Thus, the instant land transaction contract becomes null and void, and thus the Defendant has no duty to perform the procedure for the registration of ownership transfer. However, the lower court erred by misapprehending the legal doctrine, thereby convicting the

B. Unreasonable sentencing

The punishment sentenced by the court below against the defendant (one year and three months of imprisonment) is too unreasonable.

2. Determination

A. Summary of the facts charged in this case

With respect to the land located in the Jeonnam-gun, Namnam-gun, and the land transaction permission zone was designated for five years from around August 21, 2004, and was cancelled as of March 1, 2009. The Defendant entered into a sale contract with the victim non-indicted 2, a limited liability company located in Sejong-do around October 6, 2007, on which the victim non-indicted 5 located, to purchase and sell the forest land of KRW 2204 square meters and KRW 748 square meters in the same Ri (number 1 omitted) owned by Non-indicted 6, and the Defendant’s mother to trade the land of KRW 43 million in the forest of KRW 75 million in the same 43 million under the name of contract deposit, namely, the Defendant continued to receive the remainder of KRW 50 million under the name of contract deposit, from the farmland number of KRW 2,500,000,0000,000,000 for the remaining 2.57,007.

In such a case, the Defendant had a duty to implement the procedure for ownership transfer registration to the victim. Nevertheless, even though the Defendant was released from the land transaction permission area regarding the said forest in violation of the above duties, around March 2, 2009, the Defendant established a collateral security liability of 12 million won in the name of the said branch office in the Donam-gun branch located in Chungcheongnam-do, Chungcheongnam-do, Chungcheongnam-do. In addition, the Defendant succeeded to the above collateral security obligation to Nonindicted 7 and 8, and the remainder of the purchase price was determined as KRW 160 million, and around June 10, 2009, the Defendant sold (number 1 omitted) and (number 2 omitted) parcel out of the said forest at the ○○○○ Licensed Real Estate Agent Office located at the lower end of Sinpo City, and completed the ownership transfer registration under the name of Nonindicted 8, and around December 12, 2009, sold the said forest (number 4 omitted), and sold the land in the name of Nonindicted 17th of the same month.

As a result, the defendant acquired the above 12 million won and the remaining value of 16 million won and suffered property benefits equivalent to 16 million won, and the victim suffered property damages equivalent to 10 million won.

B. Judgment on misconception of facts or misapprehension of legal principles

1) Whether the instant land transaction contract is finally null and void

If a land transaction contract was concluded during the designated period for a zone subject to permission without obtaining permission for land transaction and the designation of such zone has not been revoked or re-designated even after the designated period for a zone subject to permission has expired, the transaction party may immediately request the competent administrative agency for the performance of the claim for the transfer or creation of the rights, such as the ownership of the land, and the other party may file a claim for counter-performance based on the contract, and the contract is not deemed null and void. Therefore, the seller’s act of establishing another person’s mortgage in the future on the land, which is liable to implement the procedure for the registration of transfer of ownership, constitutes a crime of breach of trust (see, e.g., Supreme Court Decisions 2009Da41465, Mar. 25, 2010; 2004Do7505, Dec. 24, 2004).

On the other hand, if a land transaction contract subject to permission under the Act on the Utilization and Management of the National Territory is a contract that excludes permission from the beginning or avoids, it may be invalidated as a final and conclusive invalidation without any reason to wait for whether to grant permission. If the land within the land transaction permission zone is a land transaction contract to obtain profits from resale under an agreement on the intermediate omission registration without obtaining a transaction permission or completing a registration of transfer of ownership, each contract is null and void in its final and conclusive invalidation, and it is not reasonable for each purchaser to have the right to claim for the performance of the duty to cooperate in the procedure for applying for permission of land transaction against each seller, and therefore, it cannot be said that each purchaser has the right to claim for the performance of the duty to cooperate in the procedure for applying for permission of land transaction against each seller in succession (see Supreme Court Decision 96Da3982 delivered on June 28, 196, etc.).

In light of the aforementioned legal principles, the Defendant’s act constitutes a crime of breach of trust insofar as the instant land transaction contract does not become final and conclusive under a contract that excludes or avoids permission from the beginning. Therefore, according to the evidence duly adopted at the lower court and the first instance court, the lower court determined that the instant land was purchased from the Defendant, and the ownership transfer registration was made under the name of Nonindicted 2 limited liability company residing in the land transaction permitted zone without obtaining land transaction permission. ② The victim was not aware that each of the instant land was subject to the said land transaction contract was invalid under the name of the Defendant and Nonindicted 3, and thus, the Defendant still did not satisfy the following requirements, on the ground that each of the instant land transaction contract was invalid under the name of the Defendant and Nonindicted 3, and thus, the instant land transaction contract was invalid under the name of each of the instant parties.

2) Whether a land transaction contract becomes null and void due to Defendant’s expression of intent to cancel

(4) The Defendant asserts that the above contract was null and void since each of the instant land transaction contracts was revoked due to the victim’s fraud or mistake. According to the lower court’s and the evidence duly adopted by the court below, ① the special agreement on each of the instant real estate between the Defendant and the victim states that “the purchaser bears transfer tax and the seller actively cooperates in submitting documents related to transfer income tax.” ② However, on February 11, 2009, immediately before the cancellation of the designation of the area subject to land transaction permission, the Defendant made a request on February 11, 2009 for the transfer registration by furnishing the documents necessary for the land transaction permission, but the registration was not transferred. As such, the Defendant’s act of purchasing and selling each of the instant land cannot be deemed to have been revoked on the grounds that there was no reason to believe that the Defendant’s purchase and sale contract was void because it was about the land located within the area subject to land transaction permission, and thus, the Defendant’s act of removing the ownership of each of the instant land cannot be deemed to have been cancelled on the ground that each of the instant land was void.

C. Determination on the assertion of unfair sentencing

In full view of the fact that the defendant has no power to be punished for the same kind of crime, the fact that the damage in this case was not completely recovered even if the damage in this case reaches 172 million won, the defendant did not recognize his mistake until the trial is held, and the victim wanted to punish the defendant, it cannot be said that the sentence imposed by the court below is too unreasonable.

3. Conclusion

Therefore, the defendant's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act since there is no reason to appeal.

Judges Lee Sung-py (Presiding Judge)