Defendant

Both parties

Park Sung-sung

Law Firm Accompanying, Attorney Kim Sung-hwan

Ulsan District Court Decision 2008Ma1320 Decided February 20, 2009

The judgment of the court below is reversed.

The defendant is innocent.

The summary of the judgment of this case is publicly announced.

1. Summary of the facts charged

On February 18, 1981, Nonindicted Party 1 (Death on January 17, 1990), the husband of the Defendant, entered into a sales contract with Nonindicted Party 2 on approximately 1,286 square meters (hereinafter “instant land”) of the Plsan-gun, Ulsan-gun, Ulsan-gun, Seoul-do, one of his own property at a non-permanent place (number 1 omitted).

Nonindicted 2 paid to Nonindicted 1 the purchase price (one hundred and sixty thousand won for the instant land and the answer of fifty hundred and sixty thousand square meters) in entirety, and concluded a purchase and sale contract for the instant land with Nonindicted 3 at a non-indicted on January 17, 1987. Nonindicted 3 paid the purchase price in full to Nonindicted 2 around January 20, 1987.

In addition, after Nonindicted 2 purchased the instant land from Nonindicted 1, Nonindicted 2 and their families cultivated it directly. After Nonindicted 3 purchased the instant land from Nonindicted 2, Nonindicted 3 leased it to Nonindicted 4, and Nonindicted 4 and their families paid rent to Nonindicted 3 and cultivated it.

Accordingly, the duty of Nonindicted Party 1 to perform the registration procedure for ownership transfer of the instant land to Nonindicted Party 2 and Nonindicted 3 was generated, and the Defendant, the inheritor, due to the death of Nonindicted Party 1 on January 17, 1990, succeeded to the said duty.

Nevertheless, in violation of the above duties, the Defendant completed the registration of ownership transfer of the instant land under the name of the Defendant on the ground of inheritance due to the division by agreement on March 26, 2004, and sold the instant land to the real estate business operator under the name of the Defendant’s house at the end of March, 2004 (number 3 omitted), at the end of Ulsan-gun, Ulsan-gun, Ulsan-do, to the real estate business operator under the name of the Defendant’s house (after this, the instant land was transferred in the name of Nonindicted 5 on the ground of sale on April 12, 2004).

As a result, the Defendant acquired pecuniary benefits equivalent to KRW 38 million at the market price of the instant land, and caused damage equivalent to the same amount to Nonindicted 3.

2. Summary of grounds for appeal;

A. Defendant (Definite or misunderstanding of legal principles)

The judgment of the court below which found the defendant guilty due to the following reasons is erroneous in misunderstanding of facts or misunderstanding of legal principles that affected the judgment.

(1) In light of the fact that the Defendant continued to pay taxes and public charges imposed on real estate, such as property tax, until he disposes of the instant land to Nonindicted 5, there was no intention to commit the crime of breach of trust.

(2) From now on, the instant land has been abandoned continuously since a large amount of rained ten (10) years ago, so the Defendant’s obligation to transfer ownership has expired ten (10) years after the expiration of the ten (10)-year extinctive prescription

(3) Since it is apparent that Nonindicted 3 was a requirement for acquiring farmland under the Farmland Reform Act or did not have his own intent, even if the instant land, which is farmland, was sold twice, the crime of breach of trust is not established.

(b) An inspection;

In light of the overall circumstances, such as the fact that the Defendant is legally not liable to the victim, and the Defendant denies his fault to the trial, and does not reflect his fault, and that the victim does not have any agreement or any effort to recover from damage, etc., the punishment (one year of imprisonment with prison labor for six months and one year of suspended execution) imposed by the lower court is too unreasonable.

3. Determination

Before determining the guilty of the crime of the lower judgment, it is examined whether Nonindicted 3 has the right to claim for the transfer registration of ownership of the instant land in order to determine whether the crime of breach of trust against Nonindicted 3, which was the original charge.

On the other hand, since the proof of the location government office under the Farmland Reform Act is not the requisite for establishing a farmland transaction, the transaction, which is a bond contract, shall not be invalidated merely on the ground that there is no certificate of farmland transaction at the time of the conclusion of the sales contract. However, since the contract for selling farmland to a person who is not a farmer and has become unable to acquire farmland under the Farmland Reform Act because the contract for selling farmland is null and void, the seller is not obliged to transfer the ownership, and therefore the dual transfer of the seller does not constitute

According to the records of this case, ① when Nonindicted 3 appeared as a witness in the court of original judgment and the motive for purchasing the land of this case came to go to a school Chang Chang-si, Nonindicted 3 was thought to have tried to send old age at this time and had no intention to do so at the time of purchasing the land of this case. ② Nonindicted 3 made a sales contract for the land of this case on January 17, 1987, and only paid rent to Nonindicted 4 for a certain period after the conclusion of the sales contract for the land of this case. ③ Nonindicted 3 did not take any measures for completing the registration of ownership transfer after the conclusion of the above sales contract, ③ Nonindicted 3 was living in Busan, etc. located within a distance of 20 years, and ④ the Defendant cannot be found to have paid the land of this case under the Act on the Ownership and Sale of Land of this case as well as the ownership of the land of this case. In light of the fact that the Defendant had no intention to purchase and sell the land of this case, the ownership of the land of this case and the ownership of this case could not be recognized.

Therefore, although the facts charged in this case are not proven to be innocent, the court below found the defendant guilty of the crime of breach of trust as stated in the judgment of the court below, it shall be deemed that the court below erred by misapprehending the legal principles on the crime of breach of trust or by recognizing facts against the rules of evidence.

4. Conclusion

Thus, the defendant's appeal is justified, and without examining the prosecutor's argument of unfair sentencing, the judgment of the court below is reversed, and it is again decided as follows.

The summary of the facts charged of this case is as stated in Paragraph (1). This constitutes a case where there is no proof of facts constituting a crime as seen earlier, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of this case is publicly announced under Article 58(2) of the Criminal Act

Judges Kim Sang-hoon (Presiding Judge) Na-young