(a) In the sale of real estate, when the seller is not informed of his/her duty of disclosure under the principle of good faith, and the deception constitutes a constituent element of fraud;

B. In double selling of real estate, whether the seller’s failure to notify the second buyer that the first sale contract cannot be unilaterally rescinded constitutes deception of fraud (negative)

A. In the sale and purchase of real estate, in a case where it is evident in light of the empirical rule that the seller would not notify the buyer of the specific circumstances regarding the sale and purchase of the real estate, and the buyer would enter into a sales contract and receive the purchase price without notifying the buyer of such circumstances. In a case where it is evident that the buyer would not enter into the sales contract or would not pay the purchase price if he was notified of such circumstances, the seller shall be subject to the duty of disclosure as to such circumstances. Thus, the seller’s deception, which is a constituent element of fraud, is not notified of such circumstances.

B. In double selling of real estate, the mere fact that the seller is unable to unilaterally rescind the first sale contract does not necessarily mean that the effect of the second sale contract, the performance of obligations pursuant to the second sale contract, or the realization of the right of the second buyer to the subject matter of sale. Therefore, it cannot be deemed that the seller deceivings the second buyer on the ground that the seller did not notify the second buyer of such circumstance.

Article 347 of the Criminal Act

A. Supreme Court Decision 84Do882 delivered on September 25, 1984 (Gong1984, 1754) 84Do301 delivered on March 26, 1985 (Gong1985, 649) Na. Supreme Court Decision 69Do1291 delivered on December 9, 1969

Defendant

Prosecutor

Suwon District Court Decision 90No18 delivered on August 22, 1991

The appeal is dismissed.

The Prosecutor's grounds of appeal are examined.

1. The court below found the defendant not guilty of the facts charged of this case that the defendant was aware that he could not unilaterally rescind the above sales contract because he sold part of the land of this case to the non-indicted Cho Jong, and received the down payment and intermediate payment, but he could not unilaterally rescind the above sales contract. However, in selling the land of this case to the victim without notifying the above facts, he acquired money from the victim who believed that he would not have any problem in the acquisition of the land of this case as the down payment, and acquired it by deceit.

In other words, in the double sale of real estate, the fact that the second buyer did not simply notify the second buyer of the fact of the first sale cannot be deemed to have conducted a deception, and as the second buyer did not intend to transfer ownership from the original date, or as to the second buyer, or as to the subject matter of sale, the case of entering into a sales contract without notifying the fact of any legal limitation in the execution of the sales contract, such as the case where the provisional disposition of prohibition of disposal was already decided upon the third party's application, but the second buyer is guilty. In this case, the second buyer is not aware of the fact that the first buyer of the land at the time of entering into the sales contract with the second buyer, which is the object of sale, was issued a provisional disposition of prohibition of disposal by the first buyer of the land at the time of entering into the sales contract with the second buyer. Thus, it cannot be readily concluded that the defendant had the intention of deception in entering into the sales contract with the victim, and there is no evidence to prove otherwise that there was a crime of fraud against the victim.

2. In the sale and purchase of real estate, the seller has a duty to notify the buyer of any specific circumstance in relation to the sale and purchase of the real estate without notifying the buyer of the effect of the over-the-counter sale or performance of obligations arising from the sale and purchase and to receive the purchase price without notifying the buyer of such circumstance. Meanwhile, in cases where it is evident in light of the empirical rule that if the buyer was notified of such circumstance, he would not enter into the sale and purchase contract or would not pay the purchase price, the buyer would have a duty to notify the buyer of such circumstance in advance. Thus, the seller's failure to notify the buyer of such circumstance constitutes a constituent element of fraud. However, it cannot be deemed that the seller has a duty to notify the buyer of the fact that the buyer does not interfere with the realization of the buyer's rights, such as theory in double sale and purchase of real estate, and the mere fact that the seller could not unilaterally cancel the first sale and purchase contract, it cannot be deemed that the seller's second sale and purchase of real estate can not be seen as impeding the buyer's right to the sale and purchase and sale.

In the same purport, the judgment of the court below that acquitted the defendant cannot be deemed to have erred by misapprehending the legal principles like the theory of lawsuit, and therefore there is no reason to discuss.

3. Therefore, the prosecutor's appeal shall be dismissed, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-ho (Presiding Justice)