(a) Interpretation of the period during which the resale or sublease of national housing is prohibited under Article 52 of the Housing Construction Promotion Act (Article 38-3(1) of the same Act, Article 37(1) of the Enforcement Decree of the same Act, and Article 34-2(1) of the Enforcement Rule of the same Act, and the principle

B. Whether the right to move in constitutes a building which is an object of brokerage under Article 3 subparagraph 2 of the Real Estate Brokerage Act, which raises the status of being selected as the prospective purchaser of an apartment if the winning results by filing an application on the date of drawing lots for the apartment (negative)

A. According to Article 38-3 (1) of the Housing Construction Promotion Act, which is prohibited provisions such as sub-lease, the prohibition period for resale or sub-lease, which is subject to punishment for the violation of Article 52 of the same Act, is the period prescribed by the Presidential Decree within five years from the date of the first supply of the relevant house by the project owner of national housing, and it is clear that it is subject to punishment even before or after the resale or sub-lease. Meanwhile, according to Article 37 (1) of the Enforcement Decree of the same Act and Article 34-2 (1) of the Enforcement Decree of the same Act, the national housing constructed and supplied by the project owner of national housing is prohibited from resale or sub-lease for six months from the date of the occupancy of the relevant house notified to the prospective occupants, and only the resale or sub-lease during this period becomes subject to punishment under the above penal provisions, and there is no need to interpret the first provision of the house as the prohibition period after the first supply of the house in light of the legislative intent of Article 38-3 (1) of the Housing Construction Promotion Act.

B. It is difficult to view that the occupancy right, not the right to move into a specific apartment, is a building which is an object of brokerage under Article 3 subparagraph 2 of the Real Estate Brokerage Act, but is not a right to move into the apartment if the winning result is applied on the date of drawing lots for the apartment, and is merely a position to be selected as the purchaser of the apartment

(a) Articles 38-3(1) and 52 of the Housing Construction Promotion Act, Article 37(1) of the Enforcement Decree of the same Act, Article 34-2(1) of the Enforcement Decree of the same Act, Article 13(1) of the Constitution;

B. Supreme Court Decision 89Do1886 delivered on April 27, 1990 (Gong1990, 1202)

Defendant 1 and three others

Prosecutor

Seoul Criminal Court Decision 88No3885 delivered on April 6, 1989

The appeal is dismissed.

We examine the prosecutor's grounds of appeal.

1. Point violating the Housing Construction Promotion Act;

Article 38-3 (1) of the Housing Construction Promotion Act provides that national housing constructed and supplied by the project owner of national housing shall not be resold or subleased (in the case of national housing constructed and supplied for the purpose of lease) to other persons unless the period prescribed by the Presidential Decree elapses within the extent of five years from the date of its first supply, and Article 52 of the same Act provides that a person who resells or subleases such housing in violation of the above provisions shall be punished by a fine not exceeding ten million won. According to the above provisions, the prohibition period for resale or sublease, which is subject to the penal provisions, is within the period prescribed by the Presidential Decree within the extent of five years from the date of its first supply, and it is clear that the prohibition period for resale or sublease, which is subject to the penal provisions, is within the period prescribed by the Presidential Decree within the extent of five years from

Meanwhile, Article 37 (1) of the Enforcement Decree of the same Act provides that "the period prescribed by Presidential Decree" under Article 38-3 (1) of the same Act shall be six months, and Article 34-2 (1) of the Enforcement Rule of the same Act provides that "the date of the first supply" under Article 38-3 (1) of the same Act refers to the starting date of occupancy of the relevant house notified by the project owner to prospective occupants. Thus, national housing constructed and supplied by the project owner of national housing is prohibited from resale or sublease for six months from the starting date of occupancy of the relevant house notified to prospective occupants, and only the resale or sublease during this period shall be subject to punishment under the same penal provision.

The legislative intent of the prohibition provisions, such as the resale, seems to be to prevent real estate speculation and promote the supply of housing to homeless people, and in light of such legislative intent, it is necessary to regulate acts, such as resale, etc. even before the first supply date, even though there is no difference between the first supply date and the first supply date of the house in question, it is difficult to find reasonable grounds to prohibit acts, such as resale, etc., after the first supply date, and therefore, it is insufficient to legislation. However, the first supply date of the house in question is only the expiration date of the prohibition period, and the first supply date of the house in question is not the time of the prohibition period, but the first supply date of the house in question is not the time of the prohibition period, but the first supply date of the house in question is not the time of the prohibition period, but the lack of legislation is covered by the expansion of interpretation beyond the meaning of the express provision in order to punish acts such as the first supply date before the first supply date. Such interpretation of the law should not be accepted in light of the principle of no punishment without law.

In the above purport, the court below held that the defendants' resale of the Si-young apartment of this case did not go against the prohibition of resale under Article 38-3 (1) because it did not go against the prohibition of resale under Article 38-3 (1) since it did not go against the above six months after the date of commencement of occupancy. Therefore, the court below did not err in the

2. Violation of the Real Estate Brokerage Act;

Since the building stipulated in Article 3 subparagraph 2 of the Real Estate Brokerage Act includes not only the existing building but also the specific building to be constructed in the future, if the buyer of the apartment is selected or the sales contract was concluded, it constitutes brokerage of the building to intermediate the sale and purchase of the apartment even before the specific apartment is completed (see Supreme Court Decision 89Do1885 delivered on February 13, 1990). However, according to the facts duly established by the court below in this case, the right of the defendants to purchase and sell or sub-lease the apartment is not the right to occupy a specific apartment but the right of the defendants to purchase and sell or sub-lease the apartment, and if the winning results are applied on the date of drawing of the apartment, it is nothing more than the position to be selected as the prospective purchaser of the apartment. Therefore, such right to occupancy is difficult to be considered as a building that is an object of brokerage under Article 3 subparagraph 2 of the Real Estate Brokerage Act.

The judgment of the court below to the same purport is just and there is no error of law as to the interpretation and application of statutes, and it is without merit.

3. Violation of the Real Estate Brokerage Act against Defendant 2

In light of the records, we affirm the measures that the court below decided that the right to move in the resale of the above defendant does not constitute a real estate, the change of rights such as resale under the provisions of the laws and regulations stipulated in Article 15 (6) of the Real Estate Brokerage Act, and there is no error of law such as a theory of litigation.

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

Justices Song Man-man (Presiding Justice)