Defendant

Defendant

U.S.C.

Attorney Go-joon

Seoul Central District Court Decision 2010Gohap6057 Decided June 15, 2011

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 5,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misapprehension of legal principles

Article 10(1) of the Act on the Sale of Building Units (hereinafter “Building Units Act”) provides that “the seller of a building without filing a sale report shall be punished.” It is reasonable to interpret that “sale” means that the seller of a building sells the building at a price to at least two persons. It is reasonable to interpret that the Defendant: (a) sold part of Nonindicted 2, 3, 4, 5, 6, 7, and 8 (hereinafter “Nonindicted 2, etc.”) of the ○○○ Distribution Center (hereinafter “the building in this case”) located in the 3 and 4th floor of the building in this case; and (b) sold part of the 1 and 2 floors to the seller of the building in Yongsi-si (hereinafter “Nonindicted 2, etc.”) in proportion to the size of the building in this case; and (c) did not sell the above parking lot at a price to Nonindicted 2, etc., the lower court erred by misapprehending the facts of the charge in this case or by misapprehending the legal doctrine that affected the conclusion of the judgment.

B. The assertion of unfair sentencing

In light of all kinds of sentencing conditions, the sentence of the court below (the fine of KRW 20 million) is too unreasonable.

2. Determination

A. Judgment on misconception of facts or misapprehension of legal principles

1) First, Article 2 subparag. 2 of the Subdivision Act provides that the meaning of “sale” under the Subdivision Act provides that “the sale of all or part of buildings constructed by a seller for sale to two or more persons.” The prior meaning of sale refers to the sale of buildings constructed by a seller for sale to two or more persons. Article 1 of the above Act provides that “The purpose of this Act is to protect persons who acquire buildings by securing transparency and transaction safety in the process of sale of buildings by providing for the procedures and methods of sale, and contribute to the sound development of the national economy.” The above Act provides that the process of sale of buildings is subdivided into a report of sale, acceptance of a report of sale, notice of sale, advertisement of sale, open recruitment, open selection, and conclusion of a contract for sale, report of sale in lots, acceptance, advertisement of sale in lots, sale in lots, lot and sale in lots, and the prior meaning of sale means that a seller for sale in lots sells buildings at a price or punishment for sale in lots without filing a report of sale in lots or by filing a report of sale in a false or other unlawful manner.”

2) Comprehensively taking account of the evidence duly adopted and examined by the lower court regarding the instant case, ① Nonindicted Co. 1 (Supreme Court Decision 2008) submitted a sale report stating that the instant building will be sold on the 10th floor (the first floor sales facilities, the second floor neighborhood living facilities, and the third-class parking facilities) on December 18, 208. The Defendant’s act of selling the instant building on the 10th floor and the 4th floor area of the instant building, which was the first floor and the 2th floor area of the instant building, was the sale of the instant building on the 19th floor and the 4th floor area of the instant building, and the Defendant’s act of selling the instant building on the 1st floor and the 2th floor area of the instant building on the 4th floor, which was the sale order of the instant building on the 1st floor and the 2th floor area of the instant building on the 2nd floor, which was the sale order of the instant building on the 1st floor and the 2th floor area.

B. Determination on the assertion of unfair sentencing

The crime of this case is deemed to have sold the parking lot part without filing a sale report. The purpose of this case is to ensure transparency and transaction safety in the process of the building and contribute to the sound development of the national economy by prescribing the matters concerning the procedure and method of the sale of the building. However, there is no record of criminal punishment exceeding the fine. Meanwhile, even though the Defendant intended to report the sale of the parking lot to the public official, the part of the parking lot was impossible and the part of the parking lot was not accepted. It appears to be somewhat reasonable to consider the circumstances of the crime of this case. Further, the damage suffered by the buyers is more equal than the ordinary sale price which was advertised at the time of the contract. Thus, the crime of this case seems to have been seriously infringed on the legal interests and interests of the Defendant to protect the law of this case, regardless of the rate under the Act on Fair Labeling and Advertising by deeming it as false and exaggerated advertisements, and considering the circumstances, the Defendant’s motive, motive, and circumstances, and all other circumstances following the crime of this case, are unreasonable.

3. Conclusion

Therefore, since the defendant's appeal is well-grounded, the judgment of the court below 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 constituting the crime recognized by this court and the summary of the evidence are the same as the corresponding columns of the judgment of the court below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Articles 10(1), 5(1), and 5(1) of the Act on Sale of Each Building

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

Judges Yang Sung-ju (Presiding Judge) Protocol