(영문) 대법원 2015.11.27.선고 2014도191 판결

The part of the judgment of the court below against Defendant B and C is reversed, and that part of the case is remanded to the Panel Division of the Seoul Northern District Court.

Defendant A’s appeal is dismissed.

Reasons

The grounds of appeal are examined.

1. As to the prosecutor's grounds of appeal on Defendant B and C [to the extent of supplement in the event of any statement in the grounds of appeal filed after the deadline for submitting the grounds of appeal)]

A. Article 2 subparags. 7 through 9 and Article 43 subparag. 2 of the Public Notice of Values and Appraisal of Real Estate Act (hereinafter “Public Notice of Values and Appraisal Act”) define that appraisal means determining the economic value of land, etc. and indicating the result at the price. An appraisal business entity refers to an appraiser who has reported pursuant to Article 27 and an appraisal business entity who has obtained authorization pursuant to Article 28, and an appraisal business entity who has not been an appraisal business entity shall be punished for engaging in the business of appraisal and assessment at the request of others.

Meanwhile, Article 2 of the Certified Public Accountant Act limits the scope of duties performed by a certified public accountant on the commission of another person to "accounting, appraisal, certification, calculation, organization, drafting, establishment, etc. of an accounting" (Article 1), "tax agent business" (Article 2), and "business incidental to subparagraphs 1 and 2" (Article 3). In light of the legislative intent and purpose of the Certified Public Accountant Act, the purport and contents of the above provision stipulating the scope of duties of a certified public accountant in order to ensure the accuracy and adequacy of accounting information, "appraisal of accounting" under the above provision refers to a business of reporting an analysis and judgment based on the professional accounting knowledge and experience on accounting documents, such as statement of financial position and statement of profits and losses prepared by an enterprise, and this refers to whether the accounting documents recorded after measuring the economic activities of an enterprise are accurately and appropriately prepared in accordance with the accounting standards, and whether the book value of assets is based on data that can be trusted. However, it does not include other business experience and the scope of appraisal and assessment of real estate, as well as other business affairs related to the appraisal and accounting documents.

Therefore, a certified public accountant who is not an appraisal business operator is engaged in the appraisal of the land as provided by the Public Notice of Real Estate Act at the request of another person and receiving a certain remuneration constitutes an act subject to punishment pursuant to Article 43 subparagraph 2 of the Public Notice of Real Estate Act, and barring any special circumstance, it cannot be deemed as an act pursuant to Article 20 of the Criminal Act as a justifiable act.

B. According to the reasoning of the lower judgment and the record, Defendant B and C, a certified public accountant, in collusion with Defendant A on July 2009, were requested to assess the fair value following the introduction of the Korea Selection Accounting Standards (hereinafter “International Accounting Standards”) on the land of this case, including the site owned by the said company from Samsung Electronic Co., Ltd. on or around the first day of July 2009, by comparing and analyzing the regional factors affecting the price formation of the land based on the officially announced land price of the reference land located in the same or similar adjacent areas, and individual factors, etc., which are indicated as KRW 7,215,142,128,981, which are indicated as the fair value of the land of this case, and received KRW 150,500,000 in return.

In light of the legal principles as seen earlier and Article 21 of the former Public Notice of Values and Appraisal of Real Estate Act (amended by Act No. 12018, Aug. 6, 2013; hereinafter “former Public Notice of Real Estate Act”), the above Defendants, even though they are not appraisal business operators, have determined the economic value of the instant land and expressed its result at the price in accordance with Article 21 of the former Public Notice of Real Estate Act, which provides for the method of appraisal at the time of individual appraisal at the request of appraisal business operators, even if they are not appraisal business operators, and thus, such acts constitute a business of appraising the land as prescribed by the Public Notice of Real Estate Act, and thus, constitute an act punished under Article 43

In addition, the illegality of the above Defendants cannot be seen as an "act under the law as stipulated by Article 20 of the Criminal Act" because they are qualified as certified public accountants, and the international accounting standards enacted pursuant to Article 13 (1) and (4) of the Act on External Audit of Stock Companies allow them to be the revaluated amount based on the "fair value on the date of revaluation" of the book value of the land.

Nevertheless, on the erroneous premise that the appraisal duty of the fair value of the instant land constitutes “an appraisal of accounts” as stipulated by Article 2 of the Certified Public Accountant Act, the lower court determined that the said Defendants’ act constitutes a justifiable act under Article 20 of the Criminal Act, since the said Defendants’ act constitutes an offense under Article 43 subparag. 2 of the Real Estate Disclosure Act, although it constituted a crime under Article 43 subparag. 2 of the same Act, was performed as a certified public accountant’s duty. In so determining, the lower court erred by misapprehending the legal doctrine on the

2. As to Defendant A’s grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed)

For the reasons indicated in its holding, the lower court rejected the Defendant’s allegation in the grounds of appeal disputing this point, on the grounds that Defendant A’s act constitutes an appraisal business prohibited by Article 43 subparag. 2 of the Public Notice of Real Estate Act, as well as an appraisal business prohibited by Article 43 subparag. 2 of the Public

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted.

Although the court below's explanation partially inappropriate, the above conclusion of the court below is just, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on interpretation of Article 43 subparagraph 2 of the Public Notice of Real Estate Act, the scope of legitimate acts, and errors in law, which affected the conclusion

3. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal by the prosecutor against Defendant B and C, the part of the judgment below against Defendant B and C is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant A’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.