[1] Whether Article 2(3) of the Act on Special Measures for the Registration of Real Estate is premised on a valid real estate transfer agreement (affirmative)

[2] The nature of certification of farmland acquisition under the Farmland Act

[3] The case holding that Article 2 of the Act on Special Measures for the Registration of Real Estate is established if a farmland acquisitor resells the farmland purchased for the purpose of acquiring gains from the resale in a timely manner to a third party although it was impossible to file an application for the registration of ownership transfer because it was impossible to obtain the

[4] The method of determining who purchased real estate under another person’s name and who is the nominal owner and the actor constitutes “a person who enters into a contract for the transfer of ownership” as the subject of a violation of special measures for the registration of real estate

[5] Whether a party's representative, etc. can be a criminal subject under Article 8 of the Act on Special Measures for the Registration of Real Estate (affirmative)

[1] In a case where a person who entered into a contract with the purport of acquiring the ownership of real estate enters into a contract with a third party on or before the date stipulated in each subparagraph of Article 2(1) of the Act on Special Measures for the Registration of Real Estate, and enters into a contract with the third party on or before the date stipulated in each subparagraph of Article 2(3) of the same Act, Article 2(3) of the same Act stipulating that an application for the

[2] The certification of qualification for acquisition of farmland under Article 8 (1) of the Farmland Act is a document to be attached to a person who acquires farmland when he applies for a registration of ownership (Article 8 (4) of the Farmland Act), and is not a requirement which generates the effect of a legal act which constitutes the cause of acquisition of farmland.

[3] The case holding that Article 2 of the Act on Special Measures for the Registration of Real Estate is established if the farmland acquisitor resells the farmland purchased for the purpose of acquiring gains from the resale in order to a third party although it was impossible to apply for the registration of ownership transfer because it was impossible to obtain the certification of farmland acquisition

[4] A person who did not file an application for the registration of ownership transfer under Article 2(1) and (3) of the Act on Special Measures for the Registration of Real Estate refers to a party to a contract involving the transfer of ownership, such as sale, exchange, donation, etc. If a person wants to purchase real estate through another person under the name of the other party, the trust relationship between the purchaser and the other party is merely an internal relationship, and thus, the other party is externally deemed a party to the contract. Thus, barring any special circumstance, the other party cannot be deemed as a party to the contract. On the other hand, where a party to the contract arbitrarily performs a legal act using another person's name, the other party to the contract should be determined first as the party's act or title holder's act. However, if the other party's intent as to who is the party to the contract and the other party to the contract coincide with it, it should be determined whether the other party to the contract and the other party to the contract are the party to the contract.

[5] Article 8 of the Act on Special Measures for the Registration of Real Estate provides that "a person who violates the provisions of Article 2 (3) shall be punished for the purpose of avoiding tax imposition, obtaining profits from price fluctuation between other market values, or avoiding restrictions under the Acts and subordinate statutes regulating changes in rights such as ownership." Article 10 of the same Act provides that "where a representative of a corporation, or an agent, employee, or other servant of a corporation or individual commits an offence under Article 8 in connection with the business of the corporation or individual, not only shall such offender be punished, but also the corporation or individual shall be punished." In light of the purport of the above provision, where an agent of an individual commits an offence under Article 8 of the Act in connection with the business of the corporation or individual, the agent of the corporation or

[1] Article 2 (1) and (3) of the Act on Special Measures for the Registration of Real Estate / [2] Article 8 (1) and (4) of the former Farmland Act (amended by Act No. 8352 of Apr. 11, 2007) / [3] Article 2 (1) and (3) of the Act on Special Measures for the Registration of Real Estate / [4] Article 2 (1) and (3) of the Act on Special Measures for the Registration of Real Estate, Articles 103 and 105 of the Civil Act / [5] Articles 8 and 10 of the Act on Special Measures for

[1] Supreme Court Decision 96Do338 delivered on April 22, 1997 (Gong1997Sang, 1682), Supreme Court Decision 2000Do3867 delivered on April 10, 2001 / [2] Supreme Court Decision 97Da49251 delivered on February 27, 1998 (198Sang, 897) / [4] Supreme Court Decision 92Da909 delivered on April 23, 1993 (Gong193Ha, 1524 delivered on October 13, 1995) (Gong195Ha, 3769) and Supreme Court Decision 200Da38639 delivered on November 26, 1996 (Gong1995Ha, 3769) and Supreme Court Decision 2005Do5379 delivered on July 26, 2007)

Defendant

Defendant

Gwangju District Court Decision 2007No313 Decided August 22, 2007

The judgment of the court below is reversed, and the case is remanded to the Gwangju District Court Panel Division.

1. As to the validity of the sales contract

Article 2(3) of the Act provides that where a person who has entered into a contract with a third party on or before the date stipulated in any subparagraph of Article 2(1) of the Act on Special Measures for the Registration of Real Estate (hereinafter referred to as the “Act”) enters into a contract with a third party on or before the date stipulated in any of the subparagraphs of Article 2(1) of the Act, where the said person shall file an application for the registration of ownership transfer in accordance with the first concluded contract within the prescribed period, the contract with the owner of farmland shall be deemed to be effective in itself (see Supreme Court Decisions 96Do338, Apr. 22, 1997; 200Do3867, Apr. 10, 201; 200Do3867, Apr. 10, 200), the qualification certificate for acquisition of farmland under Article 8(1) of the Farmland Act shall be attached to the person who has acquired farmland when he/she files an application for the registration of ownership (Article 8(4) of the Farmland Act);

In full view of the adopted evidence, the court below found that the defendant purchased the real estate of this case and conspired with the co-defendant 2 of the court below to divide profits from the resale of unregistered real estate and then sold the real estate of this case to the non-indicted 3 by entrusting the right to sell the real estate of this case to the non-indicted 2 of the court below. After the defendant entrusted the sale of the real estate of this case to the non-indicted 2 of the court below on September 13, 2004 through the co-defendant 20 of the court below, the court below determined that the sales contract is not null and void even if he did not obtain the certification of farmland qualification. In light of the above legal principles and records, the above judgment of the court below is just and acceptable, and there is no violation of the rules of evidence, joint principal offense, proviso to Article 2 (1) of the Act, and the proviso to Article 2 (3) of the Act, as alleged in the grounds for appeal.

2. As to the cancellation of the sales contract

The court below held that even if the defendant sent a certificate of content on September 30, 2004, the contract of this case cannot be deemed to have been cancelled or cancelled, the above judgment of the court below is just and acceptable, and there are no errors in the misapprehension of the rules of evidence or the misapprehension of the legal principles as to the proviso to Article 2 (1) of the Act, as alleged in the grounds of appeal.

3. As to the purchaser’s title trust

A. The judgment of the court below

In full view of the adopted evidence, the court below reasoned that, at the time of the instant contract, Non-Indicted 1 and the Defendant were in mother and child relationship, and Non-Indicted 1 were older than 78 years old, and Non-Indicted 1 was stated in the sales contract under the instant contract as purchaser, but did not participate in a series of process from the time the instant contract was concluded to be resold to Non-Indicted 3, and there was no statement in the qualification of witness, etc. in the process of investigation, and the profits accrued from resale of the instant real estate also agreed not to raise an issue about resale of the instant real estate after the Defendant acquired it divided into co-defendant with the lower court. In particular, even though there was no particular interest as to who is the purchaser of the instant contract, the lower court consistently paid the down payment and intermediate payment, etc. to the investigation agency as the actual purchaser of the instant real estate, and determined that Non-Indicted 1 was unrelated to the instant contract, as well as that other real estate within the area subject to the instant project, other than the Defendant’s name or the actual purchaser of the instant real estate transaction agreement.

B. The judgment of this Court

However, we cannot accept the above decision of the court below for the following reasons.

Article 2(1) and (3) of the Act provides that "any person who has not filed an application for the registration of ownership transfer under Article 2(1) and (3) and who has entered into a contract with an individual subject to the crime of violating the above Article 18 shall be punished as a party to a contract, such as sale, exchange, donation, etc. If a certain person agrees to the purchaser's name in purchasing real estate through another person's name, the purchaser's trust relationship is merely an internal relationship between them, and thus the other party is externally deemed a party to the contract. Thus, barring any special circumstance, the person cannot be deemed as a party to the contract whose contents are transfer of ownership (see Supreme Court Decision 2006Do560, May 11, 2007). On the other hand, if the person enters into a contract by using another person's name without permission, the former shall be first determined as the party to the contract, and if the latter agrees with the intent of the actor or the other party to the contract, the latter shall be determined as the one's own name or the other party to the contract.

According to the records, although the defendant could know the fact that the non-indicted 1, his mother, as the buyer, entered into a sales contract with the non-indicted 2 on the real estate in this case, he was the buyer and the non-indicted 1 as his agent. However, whether the defendant and the non-indicted 1 agreed on the purchaser's title trust or nominal use of the real estate in this case is unclear (see, e.g., investigation records 246, 285, 452, 921, 67, 251, etc.). Thus, the court below examined whether the defendant and the non-indicted 1 agreed on the purchaser's title trust or nominal use of the real estate in this case's name, unless there are special circumstances, it cannot be deemed that the defendant constitutes the non-indicted 1 who entered into a sales contract with the non-indicted 1 as the principal agent, and thus, the defendant cannot be punished as the defendant's owner of the real estate in this case's case's non-indicted 1 as the defendant's agent or the non-indicted 2.

Nevertheless, the court below did not completely examine whether there was an agreement between the defendant and non-indicted 1 on the purchaser title trust or the nominal loan, and judged that the defendant is the actual purchaser of the contract in this case, and thus, he is the criminal subject of the above violation of the law. The court below erred by failing to exhaust all necessary deliberations or by misapprehending the legal principles on the criminal subject in violation of Article 8 subparagraph 1 and Article 2 (3) of the Act, and such illegality has influenced the judgment.

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeon Soo-ahn (Presiding Justice)