The case holding that a construction business operator cannot be punished as a violation of Article 51 of the former Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 1992) because he knew that he did not constitute a homeless household and knew that he did not constitute a homeless household as a result of an inquiry by the staff of the competent tax office about the fact that he had registered a house in his own name before the transfer of the registration of ownership transfer to a buyer after the sale of the house, and that he applied for the sale of the house, he could not be punished

The case holding that a construction business operator shall not be punished as a violation of Article 51 of the former Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 1992) because he knew that he did not constitute a homeless household and that he did not constitute a homeless household, even though he knew that he did not constitute a homeless household, he could not be punished as a violation of Article 51 of the former Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 1992).

Articles 51 subparag. 6 and 47(1) of the former Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 1992); Article 13(2) of the former Rules on Housing Supply (amended by Ordinance of the Ministry of Construction and Transportation No. 478 of Apr. 6, 191); Article 13 of the Criminal Act

Defendant

Defendant

Seoul Criminal Court Decision 92No7122 delivered on January 29, 1993

The judgment of the court below is reversed.

The case shall be remanded to the Panel Division of Seoul Criminal Court.

The defendant's grounds of appeal are examined.

1. Summary of the facts charged in this case

From May 1, 1990 to May 24, 190, the Defendant owned 1 house 1 house 1 house 1 house 1 house 1 house 1 house 1 house 2 in Jung-gu, Seocheon-gu, Seocheon-gu as of the date of the public announcement of invitation on October 24, 1990. Despite the fact that, based on the date of the public announcement of invitation on October 24, 1990, the Defendant did not have for a period of five years or more, the Defendant applied for the sale of the above apartment 1 house built in the new urban area located in the new branch of the Korea Housing and Commercial Bank located in New-dong, Yangcheon-gu, Seoul on November 3, 1990. In order to purchase the above apartment 85 square meters and the exclusive area of use of the apartment 1 house which is supplied preferentially to a homeless household with no house for five years or more, it shall be deemed to have been written in the prescribed form of "non-household household 5 years or more", and it shall be received the above apartment 1010 square meters.

2. The judgment of the court below

The court below affirmed the judgment of the court of first instance that rejected the defendant's claim against the defendant on the ground that it cannot be deemed that the defendant did not own the above house or that the defendant did not have any legitimate ground for mistake, since the defendant's act of registering as the owner of the above house was registered as the owner of the above house under subparagraph 1 of the above loan ground after the defendant constructed and sold the above house to the building owner, and there was no intention to own the above house, and therefore the defendant did not have any intention to own the above house. In addition, as a result of the defendant's inquiry to the employee of the competent tax office, the defendant's assertion that the defendant did not have any awareness of illegality as the owner of the house under the above house under the circumstance that he did not have any awareness of illegality, as alleged by the defendant, although the defendant was temporarily registered as the owner of the above house under the name of the owner of the house under the business purpose, and the defendant's act was erroneous by the response of the staff of the tax office, such circumstance alone does not lead to the fact that

3. Judgment of party members

Pursuant to Articles 51 subparag. 6 and 47(1) of the Housing Construction Promotion Act (amended by Act No. 4530 of Dec. 8, 1992), and Article 13(2) of the Rules on Housing Supply (amended by the Ordinance No. 478 of Apr. 6, 1991), in order to punish the Defendant by deeming that the Defendant is a person who has no head of a household for at least five years, but is a person who is supplied with a house constructed and supplied under the same Act by fraud or other wrongful means, the Defendant should have known that the Defendant does not fall under “non-resident with no house for at least five years” under Article 13(2) of the Rules on Housing Supply, but should have known that the Defendant was supplied with a house by fraud or other improper means.

According to relevant evidence and records, if the defendant, jointly with the non-indicted on June 1, 1989, started a national housing construction business and registered as a business operator, jointly with the non-indicted on the non-indicted on a house, purchased 228m2 on the high school site of 1989, in collaboration with the non-indicted on the non-indicted on a house, and constructed 1 multi-household house of 2nd floor above the ground (including 1 house below the loan of this case) and sold all of them between October 28, 1989 and February 5, 1990, it can be recognized that the defendant's application for the sale of housing to the non-indicted non-indicted on the non-indicted on May 1, 199 after he purchased it under the name of the non-indicted on the non-indicted on a house, and acquired it under the name of each non-indicted on that ground. Thus, it is difficult to view that the defendant's application for sale of housing to constitute a non-household house for the purpose of ownership of the above non-indicted on a house.

Nevertheless, the court below found the defendant guilty of the charges of this case solely on the ground that it did not properly examine whether the defendant's application for the sale of housing constitutes a homeless household for a period of not less than five years. The court below did not err by misapprehending the legal principles as to fraudulent or other improper methods or criminal intent under Article 47 (1) of the former Housing Construction Promotion Act or failing to properly examine the case, and it is obvious that such illegality affected the conclusion of the judgment. Thus, there is a reason to point out this error.

4. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon-young (Presiding Justice)