[1] Whether Article 2(3) of the Act on Special Measures for the Registration of Real Estate applies to this invalid contract (negative)

[2] In a case where a parcel of land within a permitted area under the National Land Planning and Utilization Act was resold without completing the registration of ownership transfer, the case holding that the crime of violation of Article 8 subparag. 1 and Article 2(3) of the Act on Special Measures for the Registration of Real Estate is not established on the ground that the sale contract was clearly invalidated from the beginning on the ground that the

[3] The probative value of the protocol of trial

[4] The case affirming the judgment of the court below which held that the preparation of documents necessary for a registration as a certified judicial scrivener's affairs by delegated preparation of land transaction application without actual involvement of a certified judicial scrivener constitutes a violation of Article 74 (1) 1 and Article 3 of the Certified Judicial Scriveners Act

[1] Article 2 (3) of the Act on Special Measures for the Registration of Real Estate provides that where a person who entered into a contract with the purport to acquire the ownership of real estate enters into a contract with a third party on or before the date stipulated in each subparagraph of Article 2 (1) of the same Act, he/she shall apply for the registration of ownership transfer pursuant to the contract which is entered into first within the prescribed period. Article 2 (3) of the same Act provides that a contract with the purport to transfer the ownership of real estate is a provision that assumes that

[2] In a case where a parcel of land within a permitted area under the National Land Planning and Utilization Act was resold without completing the registration of ownership transfer, the case holding that the crime of violation of Article 8 subparagraph 1 and Article 2 (3) of the Act on Special Measures for the Registration of Real Estate is not established on the ground that the sale contract was clearly invalidated from the beginning on the ground that the intention of

[3] Except where there is an obvious clerical error in the contents of the protocol, the legal proceedings at the court date which are written in the protocol are proved only by the protocol, and its probative value is absolute that no counter-proof is allowed by data other than the protocol.

[4] The case affirming the judgment of the court below which held that the preparation of documents necessary for a registration as a certified judicial scrivener's affairs by delegated preparation of land transaction permission with the authority of a certified judicial scrivener without actual involvement constitutes a violation of Article 74 (1) 1 and Article 3 of the Certified Judicial Scriveners Act

[1] Articles 2(3) and 8 subparag. 1 of the Act on Special Measures for the Registration of Real Estate / [2] Articles 2(3) and 8 subparag. 1 of the Act on Special Measures for the Registration of Real Estate / [3] Article 56 of the Criminal Procedure Act / [4] Articles 2(1)3, 3, and 74(1)1 of the Certified Judicial Scriveners Act

[1] Supreme Court Decision 96Do338 delivered on April 22, 1997 (Gong1997Sang, 1682), Supreme Court Decision 2000Do3867 Delivered on April 10, 2001 / [3] Supreme Court Decision 96Do173 Delivered on April 9, 1996 (Gong196Sang, 147), Supreme Court Decision 2002Do2134 Delivered on July 12, 2002 (Gong2002Ha, 2004), Supreme Court Decision 2003Do3282 Delivered on October 10, 203 (Gong203Ha, 22214), Supreme Court Decision 205Do5966 Delivered on October 28, 2005

Defendant 1 and one other

Defendants

Attorneys Yellow-gu et al.

Seoul Central District Court Decision 2005No45, 730, 1408, 2155 Decided August 18, 2005

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court. Defendant 2’s appeal is dismissed.

1. As to Defendant 1’s appeal

A. Violation of special measures for the registration of real estate

ex officio, the summary of the charge of violation of the Act on Special Measures for the Registration of Real Estate among the facts charged against Defendant 1 is as follows: “Defendant 1, in collusion with Nonindicted 1, etc., reselled Nonindicted 3 under the state that Nonindicted 1, etc. did not complete the registration of transfer of ownership, the forest land No. 21, 27, 690 in Seongbuk-gu, Sungnam-si, Sungnam-si, Sungnam-si, which was purchased from Nonindicted 2, and sold it to Nonindicted 3; Nonindicted 3 cancelled the above sale contract; Nonindicted 4,800 in the forest land No. 27, 27, 300 in the above mobilization region; and reselled the forest forest land No. 27 in the above mobilization region to Nonindicted 3 or Nonindicted 4 on several occasions in collusion with Nonindicted 5, etc. without completing the registration of transfer of ownership; and the court below affirmed the judgment of the first instance that found the Defendant guilty

However, we cannot accept the above judgment of the court below.

Article 2(3) of the Act on Special Measures for the Registration of Real Estate provides that where a person who entered into a contract with the head of the competent authority on the transfer of ownership of real estate enters into a contract with a third party on or before the date stipulated in each subparagraph of Article 2(1) of the same Act, he/she shall apply for the registration of ownership transfer pursuant to the first contract within a prescribed period. Article 2(3) of the same Act provides that a contract with the head of the competent authority on the transfer of ownership of real estate is a provision premised on the validity of the contract itself (see Supreme Court Decisions 96Do3338, Apr. 22, 1997; 200Do3867, Apr. 10, 201; hereinafter referred to as the "National Land Planning Act"), a land transaction contract within a permitted area pursuant to the National Land Planning and Utilization Act (hereinafter referred to as the "National Land Planning Act"), which is subject to permission, shall become invalid in principle until the permission becomes void and void.

However, since the forest of this case is land within the permitted area under the National Land Planning Act, the sales contract takes effect only with the permission of the competent administrative agency, and in light of the fact that Defendant 1 et al. obtained land transaction permission as if the sales contract was concluded between Nonindicted 2 and the final buyer with respect to the forest of this case, Defendant 1 et al. was clearly intended to exclude land transaction permission from the beginning with respect to the sales contract concluded between Nonindicted 2 and Nonindicted 1 and the sales contract between Nonindicted 1 and Nonindicted 3 or Nonindicted 4. Thus, the above sales contract shall be deemed null and void on a conclusive basis, and therefore, it shall not be deemed a violation of Article 8 subparagraph 1 and Article 2 (3) of the Act on Special Measures for the Registration of Real Estate, which is premised

Nevertheless, the court below found Defendant 1 guilty of violating the Act on Special Measures for the Registration of Real Estate. Thus, the court below erred by misapprehending the legal principles on Article 2 (3) of the Act on Special Measures for the Registration of Real Estate, and it is clear that such illegality affected the judgment (the violation of Articles 8 subparagraph 1 and 2 (3) of the Act on Special Measures for the Registration of Real Estate is established in cases where a person who entered into a contract with a third party on the real estate ownership transfer intends to be exempted from taxation, and fails to file an application for the registration of transfer of ownership pursuant to the contract, which is entered into within the prescribed period, with a third party on or before the date stipulated in each subparagraph of Article 2 (1) of the Act. Thus, the conclusion of a sales contract again within the period stipulated in Article 2 (1) of the Act does not constitute a violation of Article 8 subparagraph 1 and Article 2 (3) of the same Act. Thus, if a person who entered into a resale contract with a third party on the real estate ownership transfer intends to enter into a contract with a third party on the ownership transfer.

B. Violation of the National Land Planning and Utilization Act and violation of the Real Estate Brokerage Act

Except in cases where there is an obvious clerical error in which the protocol of public trial is written, it shall be proved only by the protocol, and its probative value is absolute in which materials other than the protocol of public trial are not allowed to be counter-proof (see Supreme Court Decisions 96Do173, Apr. 9, 1996; 2002Do2134, Jul. 12, 2002, etc.).

According to the records, it can be seen that there was the final argument of Defendant 1's defense counsel and the final statement of Defendant 1 on the fifth trial date of the court below, and the pleading has been concluded, which is recorded in the protocol of trial, and there is no evidence to deem that the statement is an obvious clerical error. Therefore, the grounds of appeal disputing the contents of

In addition, examining the adopted evidence of the judgment of the court of first instance maintained by the court below and the court of first instance in the records, it is proper that the court below found Defendant 1 guilty of violating the National Land Planning Act and the Real Estate Brokerage Act, and there is no error of law such as incomplete deliberation or misconception of facts against the rules of evidence.

2. As to Defendant 2’s appeal

According to the records, it is apparent that Defendant 2 was unable to submit only unfair sentencing as the grounds for appeal against the judgment of the court of first instance. As such, the above Defendant cannot be deemed as the grounds for appeal against the judgment of the court of first instance which partially accepted it, such as misconception of facts due

In addition, according to the reasoning of the judgment of the court of first instance cited by the court below, the court of first instance states that Defendant 2 obtained land transaction permission by delegation from the parties to the application for land transaction permission and it is clear that the above defendant is a joint principal offender with the parties to the application for land transaction permission. Thus, the court below did not err in the misapprehension of legal principles as to the interpretation of Article 141 subparagraph 6 of the National Land Planning Act.

In addition, according to the records, Defendant 2 may be recognized as having engaged in the business of preparing documents necessary for the registration of a certified judicial scrivener, by being entrusted with preparing an application for land transaction permission with the preparation of KRW 100,000 per case or KRW 200,000 per case without actual involvement of a certified judicial scrivener. Thus, it is reasonable that the court below erred in the misapprehension of legal principles as to the Certified Judicial Scriveners Act, as alleged in the ground of appeal, and there is no violation of the National Land Planning Act by Defendant 2 and the violation of the Certified Judicial Scriveners Act by the former part of Article 37 of the Criminal Act. Thus, it is proper that the court below sentenced the punishment within the scope of the punishment prescribed by the aggravated punishment for concurrent crimes under Article 38 (1) 2 of the Criminal Act, which were selected by the court below as to each of the above crimes, and there is no violation of law in the misapprehension of legal principles as to the Certified Judicial Scriveners Act.

3. Scope of reversal

Therefore, among the judgment below, the part which found Defendant 1 guilty of violating the Act on Special Measures for the Registration of Real Estate as to Defendant 1 should be reversed, and there is no ground for appeal by Defendant 1 on the remaining criminal facts, but the court below found Defendant 1 guilty of all of them and maintained the judgment of the court of first instance which sentenced Defendant 1 to a single punishment on the ground that it is concurrent crimes under the former part of Article 37 of the Criminal Act.

4. Conclusion

Therefore, the part of the judgment below against Defendant 1 is reversed, and that part of the case is remanded to the court below for a new trial and determination. Defendant 2’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)