Defendant

Defendant

Jeong Jae-ap

Law Firm Barun Law Firm, Attorneys Lee Han-hun et al.

Suwon District Court Decision 2008Gohap1052 Decided January 21, 2009

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 3,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

Of the facts charged in this case, the National Land Planning and Utilization Act is acquitted.

1. Summary of grounds for appeal;

A. As to the forgery of private documents and the uttering of private documents

The Defendant, at the time of entering into the instant sales contract, prepared a real estate sales contract with Nonindicted 3’s permission. Therefore, the lower court erred by misapprehending the facts charged, thereby adversely affecting the conclusion of the judgment.

B. Regarding violation of the National Land Planning and Utilization Act

Since the Defendant entered into the instant sales contract with Nonindicted Party 1 on condition that land transaction permission is granted, the lower court found the Defendant guilty of this part of the facts charged and erred by misapprehending the legal doctrine on the violation of the National Land Planning and Utilization Act, thereby affecting the conclusion

2. Determination

A. Judgment on the misconception of facts as to the forgery of private documents and the uttering of private documents

Comprehensively taking account of the evidence duly adopted and examined by the court below and Nonindicted 4’s legal statement, the Defendant concluded a contract with Nonindicted 1 and 2 to purchase KRW 370 million from the purchase price to Nonindicted 1 and Nonindicted 2 for the following reasons: (a) Nonindicted 1 and Nonindicted 2 to purchase the instant land, which is farmland and forest land within the land transaction permission zone (hereinafter omitted); (b) KRW 158 square meters of forest land; (c) KRW 1,251 square meters of forest land; and (d) 1,714 square meters of forest land within the same Risan (hereinafter referred to as “3 omitted”); and (c) Nonindicted 1 and 2 to purchase KRW 370 million from Nonindicted 1 and 3,000,000 from the purchase price; and (d) the Defendant did not obtain permission from Nonindicted 1 and Nonindicted 3 for the purpose of exercising the land transaction permission requirements under the National Land Planning and Utilization Act and its Enforcement Decree; and (d) Nonindicted 1 and Nonindicted 3 did not actually reside in the relevant area for the purpose of this case.

B. Determination of misconception of facts or misapprehension of legal principles as to violation of the National Land Planning and Utilization Act

(1) Summary of this part of the facts charged

Any parties who intend to enter into a contract to transfer the ownership of land located within a permitted area shall jointly obtain permission from the competent authorities under the conditions as prescribed by Acts and subordinate statutes.

On March 23, 2005, the Defendant concluded a contract with Nonindicted Party 1, etc. to purchase the instant land located within the permitted area at the office of Kimpo-si, Kimpo-si (hereinafter, 5 omitted), and did not obtain permission from the competent authorities.

(2) Determination

"Act of entering into a land transaction contract without obtaining permission" subject to punishment under Article 141 subparagraph 6 of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009) refers to an act of entering into a contract under the condition that permission is excluded or avoided under Article 118 (1) of the same Act from the beginning, and it does not constitute an act of entering into a contract under the premise that permission is granted (see, e.g., Supreme Court en banc Decision 90Da12243, Dec. 24, 1991; Supreme Court Decision 94Do1878, Oct. 7, 1994; Supreme Court Decision 94Do2091, Apr. 7, 195).

In light of the aforementioned legal principles, the following circumstances revealed by the record, namely, ① the Defendant, at the time of entering into the instant contract with Nonindicted Party 1 and 2, entered into the land transaction agreement with Nonindicted Party 1, “The first contract is in the form of a provisional contract before obtaining a land transaction permit and its entries are valid after obtaining a land transaction permit. 2. mountain (hereinafter referred to as “3 omitted), and mountain (hereinafter referred to as “4 omitted) provide the seller’s consent to land use and a certificate of personal seal impression no later than March 31, 200 won (20,000 won) for the remainder of the public notice of the certificate of seal impression issued after the land transaction permit, and the Defendant, at the time of entering into the contract, did not obtain a land transaction permit after the seller’s entry into a land transaction permit, and the Defendant, at the time of entering into an appeal with Nonindicted Party 1 and Nonindicted Party 2, who did not obtain a land transaction permit on the premise that the Defendant did not obtain a land transaction permit within the area of the instant land transaction permit.” The Defendant did not appear to be deemed to meet the requirements for the first sale permit no more than March 20.

Therefore, the defendant's assertion of mistake or misapprehension of legal principles is justified.

3. Conclusion

Therefore, the defendant's appeal is justified, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The facts constituting the crime acknowledged by this court are as stated in paragraphs 1 and 2 of the judgment below, except that the "in-service management" in Section 9 of the judgment below as "forest management" and the "in-service management" in Section 3 as "in-service management" and the "in-service management" in Section 7 of the judgment below as "in-service management," and therefore, they are cited in accordance with Article 369 of the Criminal Procedure

The summary of the evidence of the above crime is as shown in the corresponding column of the judgment below, except for the deletion of “1.1. The police statement to Nonindicted Party 1, the statement of Nonindicted Party 1’s preparation, and the materials to be submitted to the complainant (related to the statement, inquiry, and civil trial)” in the summary of the evidence of the judgment of the court below, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

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

Article 231 (Forgery of Private Document, Selection of Fine) Articles 234 and 231 of the Criminal Act. Article 231 (Possession of Exercising Private Document, Selection of Fine)

1. Aggravation for concurrent crimes;

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

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

As seen in Article 2-2(b) of the National Land Planning and Utilization Act, the charges of violating the National Land Planning and Utilization Act should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act.

Judges Kim Ho-ho (Presiding Judge)