Defendant 1 and two others

Defendants and Prosecutor

Changwon

Attorney Yellow-sik

Changwon District Court Decision 2006Ma616 decided May 2, 2007

All parts of the judgment of the court below excluding the acquittal portion shall be reversed.

Defendant 1 shall be punished by imprisonment with prison labor for one year, and by imprisonment with prison labor for two and three months.

With respect to Defendant 1, ten days of detention days prior to the pronouncement of the original judgment shall be included in the above sentence.

except that the execution of each of the above penalties shall be suspended for three years from the date this judgment becomes final and conclusive.

One copy of the seized real estate sales contract, the letter of withdrawal of the inspector and the letter of confirmation (Evidence Nos. 1 through 24), one dancing hall (Evidence No. 25, except for Certificate No. 25, 2, and 3), and 13 plastic painting (Evidence No. 26) shall be confiscated from each of the Defendants.

The amount of KRW 420,400,000 shall be additionally collected from Defendant 1.

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

1) Defendant 1

A) The Defendant did not resell the land 1085-18, and 35 (hereinafter “each of the instant lands”) at Singu New-si, New-si, Seoul-si, the Defendant, rather than reselled the land (hereinafter “each of the instant lands”), but agreed to receive compensation for the waiver of apartment construction projects planned by the Defendant on one part of each of the instant lands, and given up the rights to each of the instant lands, and only purchased each of the instant lands from Nonindicted 1, and even if the Defendant purchased each of the instant lands directly from Nonindicted 1, the Defendant had no intention to obtain profits from tax evasion or price fluctuation.

B) Also, the Defendant’s KRW 670 million received from the development of Prostitution Co., Ltd. cannot be deemed as the goods acquired by criminal act.

C) Nevertheless, the court below found the Defendant guilty of violating the Act on Special Measures for the Registration of Real Estate and ordered the Defendant to additionally collect KRW 670 million from the Defendant, which erred by misapprehending the legal principles on the act of pre-sale and pre-sale and the act of forfeiture and collection in violation of the Act on Special Measures for the Registration of Real Estate, thereby adversely affecting the conclusion of the judgment.

(ii)a prosecutor;

According to each evidence submitted by the prosecutor, although it is sufficient to find Defendant 1 guilty of the facts charged for forging each private document and the uttering of a falsified document, the judgment of the court below which acquitted Defendant 1, is erroneous in the misapprehension of facts or in the misapprehension of legal principles as to accomplice, which affected

B. Unreasonable sentencing (defendants)

The punishment sentenced by the court below to the defendants (defendant 1: 3 years of imprisonment, additional collection of 670 million won, defendant 2 and 3: 1 year of imprisonment) is too unreasonable in light of all circumstances which are the conditions for sentencing.

2. Determination

A. As to Defendant 1’s assertion of mistake or misapprehension of legal principles

1) According to the evidence duly adopted and examined by the court below, 10 million won was purchased from Non-Indicted 1 on May 12, 204, and 200 million won was paid to Non-Indicted 1,50,000 won, but the above contract was terminated, and Non-Indicted 4 corporation operated by the defendant purchased each of the lands of this case from Non-Indicted 1 on December 8, 2004 at KRW 24,960,000, and each of the above lands was purchased from Non-Indicted 1 and 500,000 won was 10,000 won, and the non-Indicted 1 and Non-Indicted 2 were 50,000 won were 50,000 won were 10,000 won were 10,000 won were 10,000 won and 20,000 won were 10,000 won were 20,000 won.

2) According to Article 8 subparag. 1, Article 2(1), and Article 8(2) of the Act on Special Measures for the Registration of Real Estate (hereinafter “Special Measures for the Registration of Real Estate”), in cases where a person who entered into a contract to acquire ownership of real estate intends to be exempted from tax imposition, to obtain profits arising from price fluctuation between different market values, or to avoid restrictions on statutes regulating the transfer of rights, such as ownership, etc., enters into a contract with a third party without filing an application for registration of ownership transfer pursuant to the contract after the date the performance of consideration in return for the contract is completed, or to transfer the real estate to a third party without filing an application for registration of ownership transfer pursuant to the contract with a third party for the transfer of ownership, the execution of such unregistered resale contract is subject to criminal punishment. As such, since the price that the third party received under the above contract constitutes a criminal act, the whole or part of the contract can be confiscated pursuant to Article 48(1) and (2) of the Criminal Act, and thus, it cannot be said that there is no error of law by misunderstanding of law regarding confiscation or collection.

B. As to the prosecutor's assertion of mistake or misapprehension of legal principles

1) Of the facts charged in the instant case against Defendant 1, the summary of each of the facts charged in relation to each of the private documents and the uttering of each of the private documents

Defendant 1 in collusion with Defendant 2 or 3:

A) In purchasing 12,290 lots of 47 pieces of 12,290 on the 47th 47th Don-dong, Sin-si, with the intention of having the relevant real estate purchased at the 47th Don-si (number 1 omitted), the applicant for the approval of the sale and purchase agreement was prepared in advance and the approval of the sale and purchase agreement was obtained, and the applicant for the approval of the actual transaction of the real estate, which was conducted from

(1) At around 15:00 on December 12, 2005, the real estate sales contract was entered in the non-indicted 4 office located in the new Si-Eup-Eup's high local area (number 2 omitted) in the real estate sales contract without authority. For the purpose of exercising the authority, the non-indicted 7 and 8 of the above non-indicted 1,48 square meters in the real estate sales contract's name (number 3 omitted), "1,488 square meters in the above Dong-si (number 4 omitted), "1,00,000 won in the sale price column", "non-indicted 7, 7, 500,000 in the seller's transaction column (detailed 1 omitted), "the non-indicted 8 and the head of the new Si-Eup-Gu, the non-indicted 7 and 8 of the above non-indicted 8's seal affixed to each of the above non-indicted 7 and the purchaser's name, and then the seller's name, rights and obligations, and duties, as the attached Form 1.

(2) On December 29, 2005, at the large viewing civil service center located in the ancient city of the new Si-Gu, upon filing an application for a seal of approval for a real estate sales contract, a forged real estate sales contract shall be submitted to a public official in charge of civil service center who is not aware of the circumstances as above and shall be exercised;

B) As referred to in the above paragraph (A), the Defendants had received prior application for approval by forging a real estate sales contract and had reported the fact to a local newspaper and used its name stolen, with the intention of withdrawing the seal of approval in order to mislead any defect in the port.

(1) On April 19, 2006, at the office of the above non-indicted 4 corporation, the above non-indicted 9 and the non-indicted 8's seal affixed to the above non-indicted 9 and the non-indicted 8's seal affixed to the letter of withdrawal of the real estate sales contract, "the seller, the non-indicted 9 and the non-indicted 8's letter of withdrawal of the real estate sales contract for the rights and obligations under the name of the non-indicted 9 and 8', "the non-indicted 8, the non-indicted 8, the non-indicted 8 and the non-indicted 17, the non-indicted 9 and the non-indicted 8's letter of withdrawal of the certificate of the real estate sales contract for the non-indicted 9 and the non-indicted 8's letter of withdrawal as stated in the attached Form (2) and the non-indicted 17, the letter of withdrawal of the certificate of the real estate sales contract as stated in the attached Form (2).

(2) In the public service center for viewing the same day, 17 copies of the withdrawal of the forged real estate sales contract seal were submitted to the public official in charge of the civil service center who is aware of the fact.

2) The judgment of the court below

The lower court rendered a not guilty verdict on the facts charged on the ground that the evidence submitted by the prosecutor alone is insufficient to acknowledge the facts charged and there is no other evidence to acknowledge it.

3) The judgment of this Court

It is also true that there is a strong doubt that Defendant 1 did not forge the above real estate sales contract and use forged documents in collusion with Defendant 2 and Defendant 3, as alleged by the prosecutor.

However, in a criminal trial, the burden of proving the facts charged in the criminal trial is to be borne by the prosecutor, and the conviction shall be based on the evidence with probative value that leads the judge to feel true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is suspicion of guilt against the defendant (see Supreme Court Decision 91Do1385 delivered on August 13, 1991, etc.). In light of the records, the judgment of the court below based on the above legal principles, based on the evidence submitted by the prosecutor, it appears that the court below's determination that the above part of the facts charged against the defendant 1 was not proven to the extent that it would be reasonably doubtful, and there is no error of law by misunderstanding facts or by misunderstanding legal principles, the prosecutor's above assertion is without merit.

C. As to the Defendants’ assertion of unreasonable sentencing

In full view of the various circumstances, such as the Defendants’ age, character and conduct, intelligence and environment, motive, means and consequence of the crime, the circumstances after the crime, etc., the sentence imposed by the lower court to the Defendants seems to be too unreasonable, and thus, the Defendants’ assertion is reasonable.

3. Conclusion

Therefore, all parts of the judgment of the court below except the portion not guilty are reversed, and it is again decided as follows after pleading.

The summary of the facts constituting an offense and the evidence recognized by this Court is identical to the entries in each corresponding column of the judgment of the court below, thereby citing them as it is.

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

(a) Defendant 1: Article 8 subparag. 1 and Article 2(2) of the Act on Special Measures for the Registration of Real Estate (Selection of Imprisonment);

B. Defendant 2 and Defendant 3: Articles 231, 30 of the Criminal Act (the use of each private document assistance in the market, the choice of imprisonment), 234, 231, and 30 of the Criminal Act (the use of each private document at the market, and the choice of imprisonment)

1. Aggravation of concurrent crimes (Defendant 2, 3);

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Inclusion of days of pre-trial detention (Defendant 1);

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62 (1) of the Criminal Code

1. Confiscation;

Article 48 (1) of the Criminal Code

1. Collection (Defendant 1);

Article 48(1) and (2) of the Criminal Act (750 million won for the pre-sale contract - KRW 81.5 million for the payments made to Nonindicted Party 1 - KRW 249.6 million for the payments made by the Defendant to Nonindicted Party 1 = 420 million for the sales price paid by the Defendant to Nonindicted Party 1)

[Attachment Form 5]

Judges Long-ray (Presiding Judge) Kim Gung-ray Park Jong-young