[1] Requirements for the act of violating Article 3 (1) of the Act on the Registration of Real Estate under Actual Titleholder's Name

[2] The case holding that where the defendant who was asked by Gap who was the owner Gap to request the title trust of real estate, completed the registration of ownership transfer under Eul's name, it does not constitute a violation of Articles 3 (1) and 7 (2) of the Act on the Registration of Real Estate under Actual Titleholder's Name

[3] In a case where an indirect charge of violating Article 7(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, which is a provision punishing a real estate title trustee, is indicted, whether the crime of aiding and abetting real estate title trust may be punished as a crime of violating Article 7(3) of the said Act, which is a provision punishing a real estate title trustee without modification of

[1] According to the provisions of Article 2 subparag. 3, Articles 3(1), and 7(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, the registration of real right to real estate should be made under the name of “title trustee” pursuant to the “title trust agreement,” and even if the registration of real right to real estate was completed, the elements of the above provision cannot be satisfied unless it was made under the “title trust agreement” or under the name of “title trustee.”

[2] The case holding that the registration of transfer of ownership in the name of a third party is not a registration made in the name of a title trustee by the "title trust agreement" and Article 3 (1) and Article 7 (2) of the Act on the Registration of Real Estate under Actual Titleholder's Name does not constitute a violation of Article 3 (1) and Article 7 (2) of the Act on the Registration of Real Estate under Actual Titleholder's Name, in case where the defendant, upon the request by the owner Gap for the title trust request for the registration of real estate

[3] In a case where a public prosecution is instituted as an indirect offense of violating Article 7(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, which is a provision punishing a real estate title trustee, the deliberation and determination of whether a crime of aiding and abetting real estate title trust, which is a provision punishing a crime of aiding and abetting real estate title trust without any change in the indictment, is difficult to deem that there is no concern that the crime of aiding and abetting real estate title trust is established may cause substantial disadvantage to the defendant’s exercise of his/her right of defense. Moreover,

[1] Article 2 subparag. 3, Articles 3(1), and 7(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name / [2] Articles 2 subparag. 3, 3(1), and 7(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name / [3] Article 7(2) and (3) of the Act on the Registration of Real Estate under Actual Titleholder’s Name; Article 298 of the Criminal Procedure Act

Defendant

Prosecutor

Seoul Western District Court Decision 2007No470 decided May 29, 2007

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 3(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name provides that “No person shall register any real right to real estate under the name of the title trustee pursuant to the title trust agreement,” and Article 7(2) provides that “the title trustee who violates the provisions of Article 3(1) and any person who instigates another person to violate the said provisions and causes the latter to violate the said provisions shall be punished by imprisonment for not more than three years or by a fine not exceeding KRW 100 million,” and Article 2(3) provides that “the title trustee means a person who registers any real right to real estate under his/her name according to the title trust agreement.”

According to the above provisions, in order to apply Article 3(1) of the above Act, the registration of real rights to real estate must be made in the name of "title trustee" under the "title trust agreement". Even if the registration of real rights to real estate has been completed, unless it was made under the "title trust agreement" or was made under the name of "title trustee", the elements of the above provisions cannot be satisfied.

The summary of the facts charged in the instant case is that the Defendant received a request from Nonindicted 1, the owner of the instant real estate through Nonindicted 2 to request the title trust agreement, thereby completing the registration of ownership transfer on the said real estate in the name of Nonindicted 3 following the death of Nonindicted 3. The registration of ownership transfer in the name of Nonindicted 3 is merely a registration made in the name of a third party without any cause regardless of the title trust agreement, and does not constitute a registration made in the name of a title trustee under the name of a title trust agreement. Therefore, the elements of Article 3(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name do

As above, the facts charged in the instant case that the Defendant cannot constitute a crime of violation of Articles 7(2) and 3(1) of the above Act without further review, to the effect that the transfer registration of ownership by the above non-indicted 3 does not meet the elements of Article 3(1) of the above Act.

The court below is justified in its conclusion that although the logic is somewhat different, the defendant cannot be held liable for a crime of violating the above Act.

2. Where a court recognizes a minor criminal facts included in the criminal facts charged within the scope that the identity of the facts charged is recognized, if there is no concern about causing substantial disadvantage to the defendant's exercise of his/her right to defense in light of the progress of trial, it may recognize ex officio a criminal facts different from the facts charged as stated in the indictment, even if the indictment was not modified. However, even in such a case, if the facts charged are not punished for the reason that the facts charged in comparison with the facts charged are serious and the indictment was not modified, it cannot be deemed unlawful on the ground that the court, ex officio, did not recognize such criminal facts unless it is recognized as significantly contrary to justice and equity in light of the purpose of the criminal procedure, such as prompt discovery of substantial truth by appropriate procedure, unless it is recognized as being contrary to the justice and equity (see Supreme Court Decision 2001Do4013, Dec. 11, 201

In light of the above legal principles, in this case where a public prosecution against the defendant is instituted as an indirect principal offender of the crime of violating Article 7(2) of the Act on the Registration of Real Estate under Actual Titleholder’s Name, which is a provision punishing the real estate title trustee, the court below’s determination on whether the crime of aiding and abetting real estate title trust, which is a provision punishing the crime of aiding and abetting real estate title trust without any change in the indictment, is established is difficult to deem that there is no concern about causing substantial disadvantage to the defendant’s exercise of defense right, and it is not illegal against justice and equity. Therefore, the court below did not err by failing to exhaust all necessary deliberations as alleged in the grounds of appeal.

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

Justices Kim Young-ran (Presiding Justice)