Defendant

Defendant

Senior Superintendent;

Suwon District Court Decision 2008 High Court Decision 755 decided July 18, 2008

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

A. Legal principles

The Defendant received free donation of 12,222 square meters of forest land (number omitted) in the actual village in Gwangju-si (hereinafter “instant land”). According to Article 118(1) of the National Land Planning and Utilization Act (hereinafter “Act”), the Defendant obtained permission from the competent authority only in the case of “transfer in return for consideration” within the land transaction permission zone, and such free donation is not subject to permission.

Therefore, even if the Defendant submitted a false forest management plan while filing an application for permission for land transaction contract of this case, which is not subject to permission, it does not constitute “person who obtained permission for land transaction contract by fraud or other improper means” under Article 141 subparag. 6 of the Act.

B. Error of mistake

The instant forest management plan is entirely dealt with by a certified judicial scrivener entrusted by the defendant, and the defendant does not take part in the plan, and is not held liable for criminal liability therefor.

2. Determination

A. Summary of the facts charged in this case and the judgment of the court below

The summary of the facts charged of this case is that "the defendant applied for permission to enter into a land transaction contract for the land of this case at the public service center of Gwangju City on July 2, 2004 (3,697)" and the facts charged are as follows: "the above forest is intended to transfer the ownership after donation from the non-indicted who is the husband, and the non-indicted, did not intend to engage in forestry, the defendant submitted an application for permission to enter into a land transaction contract and obtained permission for a land transaction contract by submitting a false forest management plan as if he were used for forestry

B. Judgment of the court below

(1) Facts of recognition

According to the Defendant’s partial statement in the court, the police interrogation protocol of the Defendant, and each investigation report (such as copies of application documents for land transaction permission), the instant land was originally located within the permission area for land transaction contract as the Defendant’s husband’s non-indicted. However, around July 6, 2004, the Defendant was donated free of charge from the non-indicted Party to the non-indicted Party; the Defendant received advice from a certified judicial scrivener about the transfer of ownership of the instant land by requesting a certified judicial scrivener to obtain permission for a land transaction contract from the certified judicial scrivener on July 6, 2004; the Defendant submitted a written application for permission for a land transaction contract and a management plan to the Gwangju Viewers on July 6, 2004; and the Defendant submitted a written permission for a land transaction contract from the Gwangju City Mayor on July 6, 2004; even if the Defendant did not actually plan to implement natural forests and putting trees on the instant land from 2004 to 208.

(2) Determination

Article 141 Subparag. 6 of the Act provides that “Any party who enters into a land transaction contract without obtaining permission under the provisions of paragraph (1) of Article 118, or obtains permission for a land transaction contract by falsity or other illegal means, shall be punished by imprisonment for not more than two years, or by a fine not exceeding twenty million won,” and Article 118 of the Act provides that “any party who intends to enter into a contract for the transfer or creation (limited to the case of transfer or creation in return for a consideration) of ownership or superficies on the land located within the permitted zone shall jointly obtain permission from the head of Si/Gun/Gu, as prescribed by the Presidential Decree.”

The purport of the permission system for a land transaction contract is to prevent speculative transactions of land or sudden increase in land prices, and to prevent speculative transactions in an area where such transactions are likely to occur, and to require permission “limited to cases where ownership is transferred or superficies are created in return for consideration” under Article 118(1) of the Act. Thus, Article 141 Subparag. 6 of the Act is reasonable to interpret the purport of punishing only cases where a contract is entered into without permission for an onerous contract subject to permission under Article 118(1) of the Act, or where a contract is obtained by deceit or other wrongful methods or

Therefore, this case is a case where the defendant received free donation from her husband and does not require permission for land transaction from the beginning. Thus, even if the defendant obtained permission for land transaction contract by attaching a false forest management plan, it does not constitute a violation of Article 141 subparagraph 6 of the Act.

Therefore, although this part of the facts charged should be pronounced not guilty on the ground that there is no proof of facts constituting the crime, the court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the original judgment is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged in this case is the same as that of the above 2-A, and this constitutes a case where there is no proof of facts constituting a crime as prescribed in the above 2-b, and thus, it is decided not to be guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Judges Choi Jae-jin (Presiding Judge)