Defendant

Prosecutor

Coinization

Daejeon District Court Decision 2006Gohap2397 Decided January 11, 2007

The part of the judgment of the court below excluding the acquittal portion as to the violation of the Real Estate Brokerage Act shall be reversed.

A defendant shall be punished by imprisonment for four months.

The prosecutor's remaining appeal is dismissed.

1. Summary of grounds for appeal;

(a) Violation of the Real Estate Brokerage Act (paragraph (1));

The crime of violation of Article 15 subparagraph 1 of the former Real Estate Brokerage Act (Act No. 6236, the "Real Estate Brokerage Act") is established when a broker makes a false speech or other act with respect to important matters in the transaction of the object of brokerage. The defendant is found to have committed a crime of violating Article 15 subparagraph 1 of the former Real Estate Brokerage Act by "the act of making the judgement of the client by means of false speech or other act with respect to important matters in the transaction of the object of brokerage." The defendant is found to have committed an act of brokering the sale and purchase of the building of 230.8 square meters and 30.8 square meters of the land site in Seongbuk-gu, Seosungdong-gu, Daejeon (Songdong-dong omitted) and the building of 30,000 won on the ground (hereinafter "real estate in this case"), even though it was impossible to receive the premium of the real estate in this case, and the remaining 70,000 won should be compensated from the new lessee of the real estate in this case, which affected the conclusion.

(b) Facts of perjury regarding price interest (the fact of prosecution No. 2-A)

In fact, at the time of concluding a sales contract of the instant real estate on April 30, 2004, Nonindicted 1 and Nonindicted 2, the seller, and the buyer, were interested in the price of the instant real estate in the said building. However, on or before April 30, 2004, the lower court rendered a judgment not guilty of this part of the facts charged on the ground that the interest in the price itself was completed as “6.3 million won for the building and land + 7,000 won for facility premium,” and on the day of the contract, only discussed about who is responsible for the number of the above facility premium on the same day. This part of the lower judgment was erroneous in the misapprehension of the facts, and the lower court did not make any decision on whether the contents of the Defendant’s statement are consistent with the objective truth, and did not err in the misapprehension of legal principles.

2. Determination

(a) Violation of the Real Estate Brokerage Act (paragraph (1));

(1) Criteria for the interpretation of penal law

The interpretation of the penal law must be strict, and the interpretation of the meaning of the express provision to the disadvantage of the defendant is not permitted because it is against the principle of no punishment without the law. The principle of interpretation of the law also applies to the interpretation of the administrative law in the case where the contents of the administrative law that is subject to the penal law are contents.

(2) Determination of this case

On the other hand, the crime of violation of Article 15 subparagraph 1 of the Real Estate Brokerage Act is established when the broker "the act of causing the judgement of the client by false words or other means concerning important matters in the transaction of the object of brokerage". Article 3 of the above Act stipulates "land, building, other fixtures on land, and other property rights and things prescribed by the Presidential Decree" as an object of brokerage. The Enforcement Decree of the above Act stipulates only standing trees under the Standing Timber Act, mining foundations under the Mining Foundation Mortgage Act, mining foundations under the Factory Foundation Mortgage Act, factory foundations under the Factory Mortgage Act" as an object of brokerage.

In addition, the legislative intent of the above provision is to prohibit the act of affecting the judgment of the client by intentionally providing false information on the objective status, etc. of the object of brokerage, in view of the fact that the real estate brokerage business is to enhance public confidence of real estate brokers and to establish a fair real estate transaction order, etc. In this case, the term "subject matter of brokerage" means "real estate of this case" and the term "important matters in transaction of the object of brokerage" means "important matters in transaction of the object of brokerage" such as the size or ownership relation of the object of brokerage, limited real right, lien and right of lease, etc., and the interpretation that the price and payment method of the object of brokerage, guarantee of payment of the purchase price of the object of brokerage, etc. are not included in "material matters in transaction of the object of brokerage" conform to the spirit of the principle of no punishment without law.

Therefore, since the violation of the Real Estate Brokerage Act constitutes a case where there is no proof of criminal facts, even if there is a different specific reason, the judgment of the court below which acquitted the defendant is just, and the prosecutor's allegation of mistake is without merit.

(b) Facts of perjury regarding price interest (the fact of prosecution No. 2-A)

Before the judgment on the grounds of appeal, we examine this part of the facts charged by the prosecutor ex officio before the judgment on the grounds of appeal. The prosecutor found on April 30, 2005 that the defendant's agent's "it appears to be a clerical error in the (trade name omitted) building" as well as the non-indicted 1's house (trade name omitted) on April 30, 2005, and concluded that it would not purchase (trade name omitted) the "(trade name omitted) building and site" of the defendant's 1,2 stories (trade name omitted)" (this seems to be a clerical error in the "building and site") operated by the defendant. However, the court below found the defendant guilty that the plaintiff and his family members were not able to purchase the equipment "(trade name omitted)" of the first and second floor "(1,2) operated by the defendant and the witness," and that the defendant's agent's testimony was no more than 1,000 evidence to the effect that it changed the above facts charged."

3. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364(2) and (6) of the Criminal Procedure Act, and the judgment below is reversed and it is again decided as follows.

The facts of the crime and the summary of the evidence as to the perjury recognized by the court below are as follows: (a) although it was true that the plaintiff and his family members were unable to purchase the "(trade name omitted) building and site" operated by the non-indicted 1 on April 30, 2005, which was found to be the (trade name omitted) building with 7 side of the non-indicted 2, the mother, the kys and the kys, etc. on April 30, 2005; and (b) they were not to purchase the "(trade name omitted) building and the site" operated by the non-indicted 1, the non-indicted 1, who left the house and the witness at the time and operated by the defendant on the (trade name omitted)"; and (c) in the summary column of the evidence, the non-indicted 1, the non-indicted 2, the non-indicted 3, the non-indicted 3, the statement of each of the court below and the non-indicted 3, the non-indicted 9's statement in each of the court below.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 152(1) of the Criminal Act (Overallly, Selection of Imprisonment)

Although the Defendant was a primary offender, the Defendant was well aware of the developments leading up to the determination of the sale price and the method of paying the instant real estate, and the fact that the Defendant and Nonindicted 4 were responsible for Nonindicted 1, the seller of lease deposit and facility premium, etc. However, there is a concern that there is any disadvantage to himself/herself, and thus, there is no good crime that may hinder the judicial function of the State by giving testimony contrary to objective truth and his/her memory, thereby impairing the judicial function of the State, causing damage, such as penalty, etc., to the above Nonindicted 1, and it is determined that the Defendant did not repent his/her mistake, and that there is no doubt about the fact that the Defendant’s act is necessary to punish the Defendant’

Judges Park Jin-han (Presiding Justice)