[1] Whether the “person who resells the status of being selected as an occupant of a house” in violation of Article 41-2(1) of the former Housing Act includes a purchaser who purchased such status (negative)

[2] The case affirming the judgment of the court below which acquitted the purchaser on the ground that the purchaser does not constitute the purchaser who bought the status of the tenant under Article 41-2 (1) of the former Housing Act with respect to the facts charged that the purchaser purchased the apartment house before five years have passed since the acquisition of the right to sell the apartment in the overheated speculative district

[1] Article 38-3(1) of the former Housing Construction Promotion Act (amended by Act No. 5914 of Feb. 8, 1999; see Article 41-2(1) of the current Housing Act); Article 47(1) (see Article 39(1) of the current Housing Act); Article 51 subparag. 4-2 (see Article 96 subparag. 2 of the current Housing Act); Articles 39(1) and 41-2(1) and 96 subparag. 2 of the former Housing Construction Promotion Act (amended by Act No. 9405 of Feb. 3, 2009); Article 38-3(1) of the former Housing Construction Promotion Act (amended by Act No. 5908 of Feb. 8, 199; see Article 38-2(1) of the former Housing Act (amended by Act No. 5914 of Feb. 8, 199); Article 51 subparag. 4-2(1) of the current Housing Act (see current Article 9-9(2) of the Housing Act)

Defendant 1 and three others

Defendant 2 and Prosecutor

Incheon District Court Decision 2009No1767 Decided September 17, 2009

All appeals are dismissed.

We examine the grounds of appeal.

1. As to Defendant 2

Defendant 2 did not submit a statement of grounds for appeal within the statutory period, and did not state the grounds for appeal in the petition of appeal. Thus, the appeal shall be dismissed by decision pursuant to Article 380 of the Criminal Procedure Act, but the appeal shall be dismissed by decision in the entirety of the prosecutor's appeal.

2. As to the Prosecutor’s ground of appeal

Article 38-3 (1) of the former Housing Construction Promotion Act (amended by Act No. 5908 of Feb. 8, 1999) prohibits "sale," such as the status of being selected as an occupant of a house, and Article 47 (Prohibition of Disturbing Supply Order) (1) prohibits "transfer," such as the status of being supplied with a house of a cooperative, and Article 38-3 (Restriction on Resale, etc. of Housing) of the former Housing Construction Promotion Act was deleted upon the amendment by Act No. 5908 of Feb. 8, 1999. Article 39 (1) of the Housing Construction Promotion Act (wholly amended by Act No. 6919 of May 29, 2003) prohibits the purchaser from resale or acquiring the status of a house of a cooperative in violation of Article 39-3 (1) of the Housing Construction Promotion Act (wholly amended by Act No. 734 of Jan. 8, 2005).

Therefore, the judgment of the court of first instance that acquitted Defendant 1, 3, and 4 of each of the facts charged in this case is affirmed, and the court below did not err by misapprehending the legal principles as to the interpretation of resale under Article 41-2 (1) of the Housing Act as otherwise alleged in the ground of appeal

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)