Defendant

Defendant

Freeboard (prosecution) and Kim Jong-sung (Trial)

Attorney Maximum Recognition

Seoul Central District Court Decision 2015Gohap418 Decided April 19, 2016

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 2,000,000.

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

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

Articles 41(4)5 and 19 of the former Rental Housing Act (amended by Act No. 13499, Aug. 28, 2015; hereinafter the same) apply only to cases where a lessee transfers a right of lease of a rental house or sub-leases a rental house in return for the payment. This does not apply to cases where a lessee allows another person to use a rental house temporarily without receiving the payment as the Defendant. In addition, the case of the Defendant constitutes an exception to which a transfer or sub-lease under the proviso to Article 19

B. Unreasonable sentencing

The punishment of the court below (2 million won of fine) is too unreasonable.

2. Determination

A. Ex officio determination

We examine the judgment on the grounds for appeal by the Defendant ex officio prior to the judgment on the grounds for appeal by the Prosecutor. In the first instance of the charges, the Prosecutor applied for the amendment of a bill of amendment to the effect that “the Defendant, thereby transferring the right of lease of rental housing to another person” was changed to “the Defendant sub-lease the rental housing to another person,” and the judgment of the court below was no longer maintained as the object of the judgment was changed by granting permission

However, the defendant's assertion of misunderstanding of facts and misunderstanding of legal principles is still subject to the judgment of the court, which will be examined below.

B. Regarding misapprehension of facts and misapprehension of legal principles

1) In full view of the following facts and circumstances that can be recognized by the evidence duly adopted and examined in the lower court and the trial, the Defendant’s assertion that the instant rental house is merely a temporary use of the instant rental house to another person is unacceptable, since the Defendant is deemed to have sub-leased the instant rental house to Nonindicted Party 1.

A) On April 3, 2011, the Defendant concluded a lease agreement on the instant rental housing with the △△△△△△ Corporation.

B) On June 17, 2014, the △△△△△△△ Corporation conducted the fact-finding survey on the instant rental housing, and at the time, the instant rental housing was residing by the person “non-party 2.” The aforementioned “non-party 2” indicated that the Defendant was “the Defendant’s person” with respect to the relationship with the Defendant. The Defendant stated in the investigative agency that he did not have an unmarried child and that he did not know the above “non-party 2.”

C) Even based on the Defendant’s statement, the Defendant did not enter the instant rental house in light of the following conditions: (a) around February 2015 to March 2015, the key to the instant rental house was left from Nonindicted 1 to Nonindicted 1; and (b) did not enter the instant rental house.

D) Nonindicted 1 used the instant rental house from February to March 2015, and around April 2015, Nonindicted 3 used the said rental house, giving Nonindicted 3 the key to the said rental house, and used the said rental house. Nonindicted 3 used the instant rental house from around that time to July 2015, and from around June 2015, Nonindicted 3 used the instant rental house.

E) The Defendant was unaware of the fact that Nonindicted 3 or Nonindicted 3 used the instant rental house, and that Nonindicted 3 replaced the locking device of the instant rental house.

F) In order to keep the apartment at the time of repair, Nonindicted Party 1 stated that he was permitted by the Defendant to use the instant rental housing for a period of two months in order to have the apartment at the time of repair. However, Nonindicted Party 1 did not confirm, after the lapse of two months, whether or not he would re-resident in the instant rental housing or house to the Defendant.

G) On July 8, 2015, the Defendant made a false statement with Nonindicted 4, an employee of the ○1 Complex Management Office of △△△△△△△△△, stating that “only a computer with the same birth and birth in the instant rental housing.”

2) The purpose of the former Rental Housing Act is to promote the construction of rental housing and stabilize the residential life of the people (Article 1 of the same Act). The purpose of supplying rental housing is to relieve the housing burden of low-income groups who are unable to enjoy the minimum housing level by their own means, and to achieve such legislative purpose, the former Rental Housing Act sets the standards for the terms and conditions of lease, such as qualifications, selection methods, deposit money, rent, etc. to become lessee of rental housing. Furthermore, in order to prevent the occurrence of problems such as falling short of the legislative intent of the former Rental Housing Act, such as the transfer of the right to rental housing to persons who are irrelevant to the purpose of this Act, and the failure of low-income groups in need of rental housing, etc. to reside in rental housing, Article 19 of the former Rental Housing Act provides that the person who becomes lessee may transfer the right of lease or sublet the rental housing only when there is a specific reason for obtaining the consent of the rental business operator. The purpose of the former Rental Housing Act and Article 19 of the former Rental Housing Act provide that the former Rental Housing Act shall not apply to sub-lease for consideration.

3) Article 19 of the former Rental Housing Act provides that, without allowing the transfer of the right of lease and the sub-lease of the rental house as seen above, it may be transferred or sub-lease in exceptional cases where a rental business operator’s consent is obtained. However, the Defendant’s assertion that the sub-lease of the instant rental house constitutes an exceptional cause for which sub-lease under the proviso of Article 19 of the Rental Housing Act is possible without having to further examine, is without merit.

3. Conclusion

Therefore, there is no ground for reversal of facts and misapprehension of legal principles by the defendant, but the judgment of the court below is reversed under Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and it is again decided as follows.

The summary of the facts constituting an offense and evidence admitted by this court is to change the second 11 of the judgment of the court below to “a defendant sublet rental house to another person,” and the summary of the evidence is as stated in the corresponding column of the judgment of the court below except for adding “part of the original trial by Non-Indicted 1, a witness’s own testimony” to the summary of the evidence. As such, it is acceptable in accordance with Article 369

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 41 (4) 5 and Article 19 of the former Rental Housing Act, and Selection of Fines

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

It is necessary to strictly cope with the instant crime by taking into account the following circumstances: (a) the instant crime was committed for the purpose of stabilizing the residence of homeless people and destroying the purpose of the public rental housing business; and (b) the purpose of the instant public rental housing business is likely to be undermined; (c) there seems to be against the principle of strict measures; and (d) there is no change in the conditions of sentencing compared with the lower court because new sentencing materials have not been submitted in the trial; and (e) there is no change in the details of the instant crime, circumstances after the crime, criminal records, etc.

Judges Lee Do-young (Presiding Judge)