Defendant

Defendant

The highest lebes (prosecutions) and the highest Cheonghos (Trial)

Attorneys Kim Ho-ho (Korean National Assembly)

Suwon District Court Decision 2012Gohap270 Decided August 16, 2012

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

A. Error of mistake

The Defendant was under contact with the person in charge of ○○○ Bank branch office ○○○○○○○○ branch office that made a loan of the successful bid balance and sought a request for a registration of unknown residence in accordance with the employee’s guidance, and the Defendant did not have any awareness of illegality. Therefore, the lower court found the Defendant guilty of the facts charged in this case.

B. Unreasonable sentencing

In light of all of the sentencing conditions of the instant case, the lower court’s penalty of KRW 300,00 (fine 300,000) is too unreasonable.

2. Determination

A. Summary of the facts charged in this case

Around February 21, 2011, the Defendant was awarded a bid of △△△△ apartment 107 Dong 1904 and awarded a bid of △△△△△ apartment 107 Dong 1904, which is located in the Dong-si ( Address omitted), and the Defendant acquired ownership on or around March 18, 201, and the Defendant did not file a false application for a false fact with respect to the resident registration. However, on or around April 28, 2011, the Defendant prepared a “application for cancellation of the resident registration” with Nonindicted 3, who is the employee of the above community service center, “Nonindicted 1 and 2 are not resident.”

However, in fact, Nonindicted 1 and 2 were residing in the above apartment without leaving the apartment, and the Defendant was aware that they were living in the above apartment because they had been in the real estate name lawsuit against them.

Accordingly, the Defendant applied for false facts on the resident registration of Nonindicted Party 1 and 2.

B. The judgment of the court below

The court below found the Defendant guilty of the charges in this case on the grounds that ① the latter part of Article 37 subparag. 3 of the Resident Registration Act does not limit the subject of punishment to the person obligated to report under Article 11 of the same Act, and that the latter part of the same Act does not limit the scope to the person obligated to report, ② the person who makes a false report as well as the person who makes a false application, is punished. ② In fact, according to the Guidelines for Handling Affairs of Resident Registration Act, the person whose domicile is registered at any time when the owner of a building makes a false fact-finding investigation, and the public official receives it and conducts fact-finding in accordance with the application for registration of unknown domicile without the awareness of illegality.

C. Judgment of the court below

(1) Prior to determining whether the Defendant was aware of illegality in preparing and submitting an application for requesting registration of unknown residence (hereinafter “instant application”) as stated in the facts charged in the instant case, we examine whether preparing and submitting the said application is subject to punishment pursuant to Article 37 subparag. 3 of the Resident Registration Act.

(2) According to the latter part of Article 37 subparag. 3 of the Resident Registration Act, “a person who files a false report or application with respect to a resident registration or resident registration certificate” is subject to punishment. In this context, “report or application with respect to a resident registration or resident registration certificate” should be limited to a report or application prescribed by relevant Acts and subordinate statutes by planning the method and procedure. If such interpretation is made, any form of request or request with respect to an administrative agency in charge of affairs such as resident registration may be subject to punishment under the Resident Registration Act depending on whether it is true, thereby violating the principle of clarity, which is expected to be subject to the principle of legality. This is also true in light of the purport that Article 18 of the Resident Registration Act regulates the method and form of a report under the Resident Registration Act in a certain form

(3) If so, as to whether the Defendant’s report of unknown domicile under Article 8 of the Resident Registration Act is made or not, Article 8 of the Resident Registration Act provides that the Defendant’s report of unknown domicile shall be made based on the report of unknown domicile. Article 13 of the Enforcement Decree of the same Act provides that the Defendant’s report of unknown domicile shall be arranged without delay upon receipt of the report of unknown domicile. However, according to the evidence duly adopted and examined by the lower court, the Defendant’s report of unknown domicile is not made in the form of “an application for the registration of unknown domicile” prepared by the Do○ Community Center without permission, and the Defendant’s filing of the report of unknown domicile with Nonindicted 1 and 2, who is a public official in charge of unknown domicile, without delay, in view of the fact that the Defendant’s report of unknown domicile under Article 8 of the Enforcement Decree of the Resident Registration Act is not made by the Defendant’s report of unknown domicile, and that the Defendant’s report of unknown domicile should not be made ex officio after his/her request for registration of unknown domicile (Article 50 of the Resident Registration Act).

(4) Furthermore, the “Guidelines for Handling Affairs of Resident Registration”, which is the guidance within the resident center, provides that occasional and regular investigations into whether the owner of the building can reside at the request of the owner of the building (Evidence No. 101 pages). However, the content of the guidelines alone cannot be deemed as a report or application that is planned by the Resident Registration Act to request the registration of unknown domicile. There is no provision related to the application for the registration of unknown domicile of a third party, such as the owner of the building, in the Resident Registration Act, Enforcement Decree thereof, and Enforcement Rule. The lower court held that the act of the Defendant’s preparing and submitting the instant application also constitutes punishment on the grounds that the latter part of Article 37 subparag. 3 of the Resident Registration Act is subject to punishment on the grounds that it is not a “written request for the issuance of resident registration certificate” but a “written request for the issuance of resident registration certificate” under the latter part of the Resident Registration Act, which is not a “written request for the issuance of the resident registration certificate,” and thus, the Defendant’s request for the issuance of the instant application can be punished on the basis of “written request for the resident registration certificate.”

(5) In addition, according to the "Guidelines for Handling Affairs of Resident Registration", the court below explained that the defendant applied for a false fact in relation to resident registration because the public official received it and conducted fact-finding upon the application of the building owner. However, according to such logic, if the creditor, debtor, or any other third party who did not enter the above guidelines for handling affairs, unlike the owner of the building, applies for a false registration of unknown domicile, it is unclear whether it can be the subject of punishment (in addition, the public official in charge, Nonindicted 3 appeared as a witness in the court of the court below and made an occasional fact-finding at any time, but in the case of a third party who is not the owner of the house, he also made an investigation at the time of quarterly fact-finding, the court below stated that the fact-finding on the resident status of the public official in charge of resident service center is conducted ex officio in accordance with Article 20 of the Resident Registration Act, and thus, there is no need to punish the third party who urged the ex officio action, or if the fact-finding is found to have been conducted by a false fact-finding.

(6) Therefore, the Defendant’s act of preparing and submitting the instant application as stated in the facts charged does not constitute “report” or “application” under the Resident Registration Act, and there is no other evidence to find that the Defendant violated Article 37 subparag. 3 of the Resident Registration Act. Therefore, the lower court found the Defendant guilty of the facts charged in the instant case.

3. Conclusion

Therefore, the defendant's appeal is justified, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is decided as follows.

The summary of the facts charged of this case against the defendant is the same as that of the above 2-A-C, and as seen in the above 2-C-C-C-, the facts charged of this case constitutes a case where there is no proof of crime, and thus, the defendant is acquitted under the latter part of Article 325

[Attachment-Related Acts and subordinate statutes omitted]

Judges Kim Han-sung (Presiding Judge)