Requirements for establishing a crime of violation of Article 8 subparagraph 1 and Article 2 (2) of the Act on Special Measures for the Registration of Real Estate concerning the Obligation to Apply for the Registration of Ownership Transfer.

Articles 2(2) and 8 subparag. 1 of the Act on Special Measures for the Registration of Real Estate

Defendant

Prosecutor

Incheon District Court Decision 2008No225 Decided August 22, 2008

The appeal is dismissed.

The grounds of appeal are examined.

Article 8 subparag. 1 of the Act on Special Measures for the Registration of Real Estate (hereinafter “Act”) provides that “any person who violates the provisions of Article 2(2) or (3) with the intention of intending to be exempted from taxation, obtaining profits arising from price fluctuation between different market values, or evading restrictions on the Acts and subordinate statutes regulating changes in rights, such as ownership, shall be punished by imprisonment for not more than three years or by a fine not exceeding 100 million won.” Article 2(2) of the Act provides that “When a person who has entered into a contract with the content to acquire ownership of real estate intends to enter into a contract with a third party for the transfer of ownership to a third party or to a third party for ownership transfer of the real estate after the date prescribed in each subparagraph of paragraph (1), he/she shall file an application for the registration of ownership transfer with the third party in accordance with the first contract concluded before entering into the contract. In full view of the above provisions, if the parties to the contract bear an obligation in consideration (see Article 8 subparag. 1 and Article 2(2) of the Act). 3), the transferee shall again be entitled to take over the real estate (see Article 13).

Examining the record of this case in accordance with such legal principles, first of all, the facts charged are as follows: (i) the Defendant transferred the ownership of “○○○○○○○○ (owner Nonindicted 2 in the register) located in Seocheon-dong, Nam-gu, Seoul, as its counter-performance of its own consideration under the exchange contract; (ii) there is no indication that the Defendant again concluded a contract with a third party for the transfer of ownership as to “the real estate (number omitted) No. 1 of the Gocheon-dong, Gwangju-dong, which is the real estate that the Defendant acquired under the exchange contract of this case, to a third party for the transfer of ownership or to a third party for the transfer of ownership; and even after examining all the evidence submitted by the prosecutor, there is no evidence to acknowledge that the Defendant completed the performance of its own consideration under the exchange contract of this case. Accordingly, the violation of the Real Estate Registration Special Measures Act among the facts charged of this case constitutes the time when there is no proof of crime

In the same purport, the decision of the court below is just, and there is no error in the misapprehension of legal principles as to the interpretation of Article 8 subparagraph 1, Article 2 (2) and Article 2 (3) of the Act.

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

Justices Kim Nung-hwan (Presiding Justice)