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The prosecutor's appeal is dismissed.
Reasons
1. Although the summary of the grounds for appeal is clear that E paid KRW 10 million to F via the Defendant is part of the sales price to be deposited to H, who is the seller of the apartment of this case, the lower court acquitted the Defendant on the ground that the nature of the said money is the sales intermediary fee, the lower court erred by misapprehending the fact.
2. Determination
A. The prosecutor asserts that, under the premise that E is part of the actual sale price of the apartment of this case, the amount of KRW 10 million paid by E to F via the Defendant is KRW 415 million, the Defendant’s possession of the said money with F and F without depositing the said money to H(I) as the seller of the apartment of this case would have accrued property benefits by deceiving E.
B. Therefore, in light of the following circumstances revealed by the evidence duly adopted and investigated by the lower court, it is reasonable to view the said money as a commission for sales brokerage to the Defendant and F.
① On October 4, 201, D agreed that the sales contract shall be completed if the balance equivalent to 72% of the initial sales price is deposited into H’s account, which is the executing company, from the I Co., Ltd., the contractor of Yeongdeungpo-gu Seoul apartment (hereinafter “the instant apartment”) to purchase 18 households out of the said apartment at a total of KRW 7.377532,000 (72% compared to the initial sales price) and to sell the said apartment, and that I would not pay a separate sales fee to D when it deposits the balance equivalent to 72% of the initial sales price with I.
② The first sale price for the relevant apartment unit that D purchased in a lump sum and the amount of purchase price for D are the same as that attached to the contract for sale in lots (attached Table No. 82). According to the [Attachment Table], the first sale price for the apartment unit 203 Dong 801, which the defendant arranged for sale in lots to E is 529,40,000 won, and D has completed the sale in lots.