Defendant 1 and one other

Final Award

Attorneys Kim Young-young et al.

Defendants shall be punished by imprisonment for ten months.

As to Defendant 1 (Defendant in a judgment of the Supreme Court), 44 days under confinement prior to the rendering of this judgment shall be included in the above sentence.

However, for two years from the date of the conclusion of the judgment, the execution of each of the above punishment against the Defendants is suspended.

The charge of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Tax) against Defendant 1 in the instant indictment is acquitted.

The Defendants entered into a sale contract with Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) on the land (hereinafter “instant real estate”) owned by Nonindicted Co. 1, which was located in Busan-gun, Busan-gun, Busan-gun, U.S., and thus, entered into a land sale contract with Nonindicted Co. 1 and completed the registration of ownership transfer for the part purchased by the joint buyers with a land transaction permit and with a land transaction permit as joint buyers. Defendant 1 would become a contracting party, and Defendant 2 would primarily deal with the practical issues;

1.Without obtaining permission from the competent authorities:

(a) On or around January 13, 2005, the office of Nonindicted Company 1 located in the Seongbuk-gu Seoul Metropolitan Government, and the office of Nonindicted Company 1 entered into the land transaction permission zone (number 1 omitted), the same Ri (number 2 omitted), the same Ri (number 3 omitted), the same Ri (number 4 omitted), the same Ri (number 5 omitted), the same Ri (number 6 omitted), the same Ri (number 6 omitted), the same Ri (number 7 omitted), the same Ri (number 8 omitted), the same Ri (number 9 omitted), the same Ri (number 10 omitted), the same Ri (number 10 omitted), the same Ri (number 11 omitted), the same Ri (number 12 omitted), the same Ri (number 13 omitted), the same Ri (number 13 omitted), the same Ri (number 14 omitted), the same Ri (number 14), the same Ri (number 15 omitted), the same land number of Defendant 16, and the same Dong (number 178).

B. Around January 26, 2005, at the office of "○○ Licensed Real Estate Agent" located in the Busan Metropolitan Transportation Daegu Dong, the above paragraph (a) entered into a contract with the captain in Busan Metropolitan City, for the change of the price to KRW 2.7 billion by entering into an agreement with the non-indicted 2.7 billion won for the same Ri (number 4 omitted), the (number 6 omitted), the same Ri (number 6 omitted), the same Ri (number 7 omitted), the same Ri (number 11 omitted), the same Ri (number 12 omitted), the same Ri (number 13 omitted), the same Ri (number 14 omitted), the same Ri (number 14 omitted), the same Ri (number 15 omitted), the (number 15 omitted), the (number 16 omitted), the same Ri (number 16 omitted), the land number 4,675/10,546 shares in the land (number 3 omitted), the same Ri (number 16 omitted), where nine parcels are combined.

C. On January 27, 2005, at the representative director office of the non-indicted 7 corporation located in the Seosan-dong, Busan Metropolitan City on the basis of the above paragraph (a), 176/591 shares out of the land in the Singu, Busan Metropolitan City (number 1 omitted), and 1,49/10,546 shares out of the land in the (number 3 omitted) land in the same Ri (number 2 omitted), 1,449/10,546 shares out of the land in the same Ri (number 2 omitted), 5 omitted in the same Ri (number 5 omitted), 8 omitted in the same Ri (number 8 omitted), 9 omitted in the same Ri (number 10 omitted), 10 omitted in the same Ri (number 17 omitted), 18,500,000 won in the same Ri (number 18 omitted), and the land transaction contract shall be amended by entering into an agreement under the above paragraph (a).

2. around January 29, 2005, at the office of the plane captain located in the Busan-gun, Busan-gun, the land transaction permission area was planned to build a 1/3 share out of 11,117 square meters of forest land located in the Busan-gun, Busan-gun, Busan-gun, the land transaction permission area, 1/3 share out of 340 square meters of forest land in the same Ri (number 21 omitted), 131/591 share out of 591 square meters of land in the same Ri (number 1 omitted), 10,546 square meters prior to the same Ri (number 3 omitted), 4,42/10,546 share in the above land transaction permission, and Defendant 1 applied for land transaction permission to the effect that he will purchase the above land from Nonindicted Company 1, the above land transaction permission was prepared for the next five years without any intention to manage the said land, such as grass, tree, tree, etc., with no intention to manage the said land in the past 2 years.

1. The Defendants’ partial statements in the second trial records;

1. Each statement in this Court by the witness Nonindicted 2, 9, 10, 11, 12, 13, and 14

1. Each prosecutor’s statement on Nonindicted 15, 16, 17, and 18

1. Seizure records;

1. Confirmation of land use plan;

1. Each real estate sales contract;

1. A certified copy of each real estate register;

1. Certificates of deposits without passbooks, and receipts; and

1. Contracts and written agreements of attached contracts;

1. Permission for a land transaction contract;

1. A copy of a bankbook;

1. Proxy letter or certificate of personal seal impression;

1. Registration certificate;

1. Article applicable to criminal facts;

Articles 141 subparag. 6 and 118(1) of the National Land Planning and Utilization Act.

1. Aggravation for concurrent crimes;

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

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 (the defendant did not have the same criminal record, and the defendant 1 was detained for a considerable period of time due to the case, and other circumstances favorable to the defendants expressed in the oral proceedings of this case)

1. Summary of the assertion

On January 13, 2005, the Defendants consulted with Nonindicted Co. 2 and 3 prior to the conclusion of the sales contract on the instant real estate with Nonindicted Co. 1 and the joint purchaser. Defendant 1 signed a provisional contract with Nonindicted Co. 2 on behalf of all the joint buyers, and prepared an agreement to determine the details of the said provisional contract with Nonindicted Co. 2 on January 26, 2005, and on January 27, 2005, entered into a regular contract with Nonindicted Co. 1 on February 3, 2005 with permission for land transaction, and concluded a provisional contract with Nonindicted Co. 1 on January 13, 2005, Jan. 26, 2005, and Jan. 27, 2005, it does not need to obtain permission for land transaction because all of the contracts were merely an internal agreement under a provisional contract or internal agreement, and asserted that the acquisition of containers and forest products among the instant real estate was not an unlawful land transaction plan or any other agricultural management plan prior to the approval was obtained.

2. Determination

(a) Facts of recognition;

The following facts may be acknowledged according to the evidence presented as evidence of guilt and the statement of a contract to establish a mortgage, a written application for a loan, a statement of account transaction, a certificate of registration, and a copy of a document prepared by Nonindicted 19.

(1) At around June through July 2004, the Defendants asked the non-indicted 19 to introduce a site of at least 3,000 square meters, which could lead to contact with the captain, to the captain. On November 2004, the non-indicted 19 reported that the instant real estate owned by the non-indicted 1 Company was sold to the captain, the non-indicted 1 Company in Busan-gun, Busan-gun, the non-indicted 1 Company, and introduced it to the Defendants.

(2) On January 13, 2005, Defendant 2 agreed to purchase the entire real estate of this case at the office of vice president of Nonindicted Party 1 and vice president of Nonindicted Party 1 in Seongbuk-gu Seoul, Seoul, for KRW 8.10 million. Around that time, Nonindicted Company 1 became aware of the policy to sell the instant real estate en bloc, and requested Nonindicted Party 19 to inquire about the persons to jointly purchase part of the said real estate, but the Defendants failed to secure a joint purchaser by the time when preparing a contract on the instant real estate between Nonindicted Company 1 and Nonindicted Party 1, as follows. After that, Nonindicted Party 2 and 3 did not specifically consult with the joint purchaser regarding the sales amount, size, etc.

(3) According to the oral agreement with Nonindicted 13, the Defendants shall prepare 25 billion won on January 13, 2005, the seller’s “non-indicted 1’s representative director,” “non-indicted 1’s non-indicted 20,” “non-indicted 1’s non-indicted 3’s non-indicted 1’s non-indicted 25 billion won,” and the seller’s “non-indicted 25 billion won,” the same Ri (number 2 omitted), the same Ri (number 4 omitted), the same Ri (number 5 omitted), the same Ri (number 6 omitted), the same Ri (number 8 omitted), the same Ri (number 9 omitted), the same Ri (number 101 omitted), the same Ri (number 12), the same Ri (number 13), and the same Ri (number 14,156) and the same Ri (number 15,78).

(4) On the other hand, around January 14, 2005, the Defendants requested Nonindicted Company 1 to combine the same Ri (number 4 omitted), the same Ri (number 6 omitted), the same Ri (number 7 omitted), the same Ri (number 11 omitted), the same Ri (number 12 omitted), the same Ri (number 12 omitted), the same Ri (number 13 omitted), the same Ri (number 14 omitted), the same Ri (number 14 omitted), the same Ri (number 15 omitted), the same Ri (number 15 omitted), the same Ri (number 16 omitted), and the same Ri (number 16 omitted), and the same Ri (number 16 omitted), among the real estate in this case, the Nonindicted Company 1 filed an application for the combination of lots with the captain-gun on January 19, 2005, and registered on January 24, 2005.

(5) On January 24, 2005, the Defendants changed the trade name of non-indicted 6 corporation in the operation of Defendant 1 to “non-indicted 21 corporation” and added “real estate sale and lease business” and “tourist accommodation business ( condominium business)” to the purpose of the corporation on the same day.

(6) After that, on January 26, 2005, the Defendants: (a) at the office of “○○ Licensed Real Estate Agent”; (b) at the office of “○○○ Real Estate Agent”; (c) on February 15, 2005, among the real estate No. 1, the combined land No. 4,675/10,546 shares among the real estate No. 1; (d) 284/591 shares among the real estate No. 1; and (e) on 1500 shares among the real estate No. 1, the seller’s land; (b) on February 26, 2005, the seller’s “Nonindicted Party 1”; and (c) on February 26, 2005, KRW 270,000 won for the down payment; and (d) on February 15, 2005, KRW 1.450,000,00,000,00 each of the following agreements are written attached to the agreement.

(A) When part of this site is expropriated as a road, the buyer Nonindicted 2’s land division shall be calculated on the basis of the side and shall ensure 1,500 square meters (excluding the area occupied as a road) (Article 1).

(B) A gold contract is concluded with Defendant 1 who representing Defendant 1 and three others, and Nonindicted 2 was listed as a joint purchaser at the time of this contract with Nonindicted Company 1 and entered into a regular contract (Paragraph 6).

(C) The intermediate payments and remainders shall be paid to Nonindicted Company 1 (Paragraph 7).

(D) The down payment of KRW 270 million is deposited in Defendant 2 and Nonindicted 2 joint bank, and the deposit is owned by the seller after the conclusion of a formal contract with Nonindicted Company 1 and then withdrawn (Paragraph 8).

(E) Except as provided in Section 10 of this letter of agreement, the part on the settlement and responsibility for Article 6(2) of the sales contract with Nonindicted Company 1 and the part on the settlement and responsibility for Nonindicted Party 1 is exempt from all responsibility for the buyer (Nonindicted Party 2). The part on the performance of the sales contract with Nonindicted Company 1 and the seller’s liability for Defendant 1 and 3, and the buyer Nonindicted Party 2 is exempted from all liability even if the name of the buyer is registered (Paragraph 1

(7) In addition, on January 27, 2005, the Defendants made a joint agreement with the representative director office of Nonindicted Incorporated Company 7 located in the Seosan-dong, Busan Metropolitan City on January 27, 2005, (176/591 shares out of the land (number 1 omitted), (1,49/10,546 shares out of the land (number 3 omitted), (2 omitted), the same Ri (number 5 omitted), the same Ri (number 8 omitted), the same Ri (number 9 omitted), (number 10 omitted), the same Ri (number 17 omitted), and (number 17 omitted), and (number 18 omitted, and (number 18 omitted) 1,400 square meters out of the total area of the land (number 1 omitted), as follows.

(A) In order to implement the agreed contents, Nonindicted 3 decided to deposit KRW 600 million out of the purchase price in Defendant 1’s passbook to pay part of the down payment and the part of the intermediate payment instead of the purchase price, and withdraw it after concluding a fixed contract between Nonindicted 1 and Nonindicted 3, and Nonindicted 3 approved it (Paragraph 2).

(B) Of the instant real estate No. 1, with respect to the land in Busan-gun, the plane captain in Busan-gun, (number 5 omitted), the same Ri (number 18 omitted), the same Ri (number 2 omitted), the same Ri (number 9 omitted), the same Ri (number 17 omitted), the same Ri (number 10 omitted), the same Ri (number 10 omitted), and the same Ri (number 8 omitted), the non-indicted 1 company entered into a sales contract directly with the non-indicted 3, and with respect to the land in the same Ri (number 3 omitted), the non-indicted 1 and the non-indicted 3 entered into a sales contract jointly with the non-indicted 1 company for the land in the same Ri (number 1 omitted), but with respect to the land in the same Ri (number 1 omitted), the registration of the divided co-ownership after division shall be made at

(C) On February 15, 2005, Nonindicted 3 paid the intermediate payment of KRW 800 million to Nonindicted Company 1, respectively, on February 28, 2005 (paragraph (6)).

(D) On February 3, 2005, the real name agreement between Nonindicted Company 1 and Defendant 1 and Nonindicted 3, and Nonindicted 3, shall be prepared (Paragraph 7).

(8) Defendant 2: (a) on February 3, 2005, between Nonindicted Company 1 and Nonindicted Company 1; (b) on behalf of Defendant 1; (c) on behalf of Defendant 2, the purchase price of the real estate “two five hundred and five hundred five hundred and five hundred five hundred and five hundred and five hundred and five hundred and five hundred and five hundred and five hundred and five hundred and five hundred and five hundred and five hundred and five hundred and five hundred and five hundred and five hundred and five hundred and five hundred and five hundred and five five and five hundred and five hundred and five hundred and five hundred and five and five hundred and five hundred and five and five hundred and five and five hundred and five hundred and five and five hundred and five hundred and five and five hundred and five hundred and five and five hundred and five hundred and five five and five hundred and five five and five hundred and five five and five hundred and five five and five hundred and five five and five hundred and five five and five hundred and five five and five hundred and five hundred and five five and five hundred and five five and five hundred and five five and five hundred and five hundred and five hundred and five and five hundred and five hundred and five hundred and five five and five hundred and five hundred and five and five five hundred and five and five and five hundred and five hundred and five hundred five and five hundred five and five hundred five and five and five hundred five and five hundred five and five and five and five hundred five and five.

(9) On the other hand, on February 4, 2005, the following day following the conclusion of the contract mentioned in the preceding paragraph, the Defendants withdrawn 270 million won and 600 million won, respectively, of the down payment deposited under the contract on January 26, 2005 and on the 27th of the same month.

(10) After that, Defendant 1, Nonindicted 2, and 3 remitted each of KRW 200 million, KRW 1 billion, and KRW 800,000 to Nonindicted Company 1 for the intermediate payment on February 15, 2005 pursuant to the contract dated January 13, 2005. On February 28, 2005, Defendant 1, Nonindicted 2,000, KRW 1.43 million, and KRW 1.35 million were directly paid to Nonindicted Company 1 for the remaining payment, and simultaneously completed the registration of ownership transfer in accordance with the terms and conditions of the contract dated February 3, 2005.

(11) Meanwhile, even though the Defendants planned to construct and operate containers, etc. on the part to be reverted to them among the instant real estate among the instant real estate, on January 29, 2005, at the office of the plane captain in Busan-gun, Busan-gun, a certified judicial scrivener, Nonindicted 8, a certified judicial scrivener, assigned a 1/3 share out of 11,17 square meters of forest land in Busan-gun, Busan-gun, the 1/3 share out of 340 square meters of forest land in the same Ri (number 21 omitted), 131-591 shares out of 591 square meters of land in the same Ri (number 1 omitted), 10,546 square meters prior to the same Ri (number 3 omitted), and prepared a land transaction permit with respect to Nonindicted 4,422/10546 shares of the said land, and received the said land transaction permit from Defendant 1 to purchase the said two forest land in the future, such as a tree pool, 100 square meters, etc.

B. Relevant regulations (the National Land Planning and Utilization Act; hereinafter “National Land Planning Act”);

A person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than two years or by a fine not exceeding 20 million won (in cases of a person falling under subparagraph 6, an amount equivalent to 30/100 of the relevant land price based on the officially assessed individual land price as at the time of concluding the contract):

6. Person who has entered into a land transaction contract without obtaining permission or a modified permission provided for in the provisions of Article 118 (1), or obtained permission for a land transaction contract by falsity and other illegal means.

Article 118 (Permission for Land Transaction Contracts)

(1) Parties intending to enter into a contract (including any reservation; hereinafter referred to as "land transaction contract") on the transfer or establishment (limited to the transfer or creation in return for a consideration) of the ownership or superficies (including the right aimed at acquiring the ownership or superficies) with respect to the land located within a permitted area shall jointly obtain permission from the head of a Si/Gun/Gu, as prescribed by Presidential Decree. The same shall also apply to any modification to permitted matters

(6) No land transaction contract that is concluded without obtaining permission provided for in the provisions of paragraph (1) shall take effect.

C. Whether the sale contract dated January 13, 2005, January 26, 2005, and January 27, 2005 is subject to land transaction permission

위 각 인정사실 및 앞서 거시한 증거들에 의하여 알 수 있는 다음의 사정 즉, ① 피고인들은 공소외 2, 3과 함께 이 사건 부동산들을 공동매수하기로 사전 협의 후 2005. 1. 13. 공동매수인들을 대표하여 피고인 1이 공소외 1 회사와 이 사건 부동산 전체에 관하여 매매계약을 체결하였다고 주장함에도 불구하고 피고인들은 위 매매계약 당시까지 공소외 2의 이름조차 알지 못하였고 공동매수인들이 참석한 가운데 매매대금, 면적 등에 관하여 구체적으로 상의한 사실이 없을 뿐만 아니라 위 계약 이전 공소외 3과는 공동매입에 관하여 구두상 합의가 이루어졌다고 주장함에도 위 매매계약서의 매수인란에 공소외 3의 이름이 누락되어 있고 ‘ 피고인 1 외 2인’이 아닌 ‘ 피고인 1 외 3인’으로 기재되어 있어 2005. 1. 13. 계약 당시까지도 피고인 1을 제외한 나머지 매수인들이 특정되어 있지 않았던 것으로 보이는 점{ 공소외 19의 2005. 1. 12.자 업무일지에는 ‘ △△사 부지 1,500 × 200 - 손님( 공소외 9이사)안내. 19:00 피고인 2 통화 1,500× 170 가능 타진 물어옴’, 2005. 1. 18.자 업무일지에는 ‘ 피고인 2 통화 : 마지노선에서 조금 지원 의사, 공소외 24 : 이주 안으로 결정의사’이라는 내용이 각 기재되어 있는바, 그렇다면 위 계약 당시까지도 공소외 19로부터 의뢰받아 공동매수인을 물색하고 있던 □□부동산의 대표 공소외 24나 공소외 2 등을 상대로 매수자 및 계약내용을 계속 협의하고 있으면서 이를 아직 확정하지 못하고 있었다고 볼 것이다}, ② 피고인들은 가계약에 불과하다고 주장하는 2005. 1. 13.자 계약과 동시에 통상의 매매계약에서와 마찬가지로 계약금 5억 원을 지급하였고, 공소외 1 회사는 2005. 2. 3.자 계약 이전에는 이 사건 부동산들의 공동매수인이라는 공소외 2, 3과 전혀 접촉이 없는 상태였으므로, 위 2005. 1. 13.자 계약에 따른 채무불이행의 책임은 전적으로 피고인들 측에 귀속된다고 볼 것인 점, ③ 피고인 1이 2005. 1. 26. 공소외 2와 사이에 작성한 첨부계약서에 따른 약정계약서에 매도인 ‘ 피고인 1’, 매수인 ‘ 공소외 2’라고 기재되어 있고, 위 약정계약서 제6항에는 ‘ 피고인 1 외 3인을 대리한 피고인 1이 공소외 2와 계약을 체결하고’라고 기재되어 있어 위 3인에 공소외 2가 포함되어 있지 않은 것으로 당사자들이 인식하고 있었던 것으로 보일 뿐만 아니라, ‘본 대지 일부가 도로로 수용될 시에 매수인 공소외 2의 토지분할은 대로변을 기준으로 계산하여 1,500평을 확보해준다(제1항), 공소외 1 회사와의 매매계약 이행부분은 매도인 피고인 1 외 3인의 책임으로 하고 매수인 공소외 2는 명의가 등재되더라도 이에 대하여 면책된다(제11항).’라고 약정하여 피고인 1이 매도인으로서의 담보책임을 부담하고 있다고 볼 것인 점, ④ 2005. 1. 13.자 매매계약서에 이 사건 부동산들 중 부산 기장군 시랑리 (지번 20 생략), (지번 21 생략) 토지를 제외한 나머지 토지는 피고인 1 외 3인이 매수하는 것으로 기재되어 있음에도 불구하고 피고인들이 정식계약이라고 주장하는 2005. 2. 3.자 계약에서 부산 기장군 기장읍 시랑리 (지번 5 생략), 같은 리 (지번 8 생략), 같은 리 (지번 9 생략), 같은 리 (지번 10 생략), 같은 리 (지번 17 생략), 같은 리 (지번 2 생략), 같은 리 (지번 18 생략) 7필지는 ‘ 공소외 3’ 단독명의로, 같은 리 (지번 20 생략), 같은 리 (지번 21 생략), 같은 리 (지번 19 생략) 토지는 공소외 6 주식회사가 아닌 ‘ 피고인 1, 공소외 22, 23’ 명의로 계약이 체결된 점 역시 2005. 1. 13. 계약 당시 공동매수인들이 확정되어 있지 않았음을 뒷받침한다고 볼 것인 점, ⑤ 피고인들 및 공소외 2, 3은 2005. 2. 3.자 계약에 따른 계약금을 지급하지 아니하였을 뿐만 아니라 가계약시 계약금으로 지급한 5억 원을 계약금으로 갈음한다는 내용도 기재되어 있지 않고, 공소외 2 및 공소외 3은 위 정식계약이라고 주장하는 2005. 2. 3.자 계약에서 정한 금액이 아닌 2005. 1. 13.자 계약과 이에 기초한 2005. 1. 26.자 및 같은 달 27.자 계약내용에 따라 중도금 및 잔금을 지급한 점, ⑥ 2005. 1. 26.자 및 같은 달 27.자 계약에 따라 계약금을 공동예치한 것 역시 공동매수인이라기보다는 상호 이해관계가 대립되는 매매계약의 당사자로서 서로간의 이행을 담보하기 위한 조치로 보이는 점 등에 비추어 보면, 피고인들은 2005. 1. 13.자 계약 당시 공동매수인들이 확보되지 않자 피고인 1 명의로 이 사건 부동산들 전체를 매수한 후 공동매수인의 지위를 양도하는 형태로 이 사건 부동산들의 일부를 전매할 생각으로 공소외 1 회사와 매매계약을 체결하여 이 사건 부동산들을 우선 확보하고, 그 후 공소외 2, 3에게 위 매매계약상의 공동매수인의 지위를 양도한 다음 공소외 2, 3이 이 사건 부동산들 중 일부를 공소외 1 회사로부터 직접 매수하는 형식으로 매매계약서를 작성하고 소유권이전등기를 마친 것이라고 볼 것인바, 그렇다면 비록 피고인들이 2005. 1. 13.자 계약에서 공동매수인들을 예정하고 있었다고 하더라도 실질적으로는 이 사건 부동산들 전체에 대한 매수인의 지위는 피고인들에게 귀속되어 있었고, 토지거래허가를 받아야 할 책임 또한 피고인들에게 귀속된다고 할 것이다( 국토계획법 제118조 제1항 에서 토지에 관한 소유권을 이전하는 계약에는 예약도 포함한다고 규정하고 있는 이상, 피고인들과 공소외 1 회사 사이의 2005. 1. 13.자 매매계약의 성격이 본계약인지 가계약에 불과한 것인지 여부를 따져볼 실익은 없다).

Therefore, the contract between the Defendants and Nonindicted Company 1 and Defendant 1 and Nonindicted Company 2 and Nonindicted Company 3 based on the contract concluded on January 13, 2005 and its basis fall under the alteration of the contract or the permission for the purchase and sale or the sale or the sale or the sale or the sale or the sale or the sale or the sale or the sale or the sale or the sale or the sale or sale or the sale or the sale or sale or the sale or sale or the sale or sale or sale or the sale or sale or the sale or sale or sale or sale or the sale or sale or sale or the sale or sale or sale or sale or the sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or sale or purchase or sale or sale or sale or sale or sale or purchase or sale or sale or sale or sale or sale

D. Whether the Defendants acquired land transaction permission is lawful

According to the above evidence, the defendants consistently asserted that the purpose of acquiring part of the real estate of this case was to promote the business even after the commencement of the investigation of this case, and the defendants did not have been engaged in the field of agriculture and forest management, and it seems that the contents of the agricultural management plan and forest management plan submitted by wholly delegating the land transaction application itself to a certified judicial scrivener, etc. were not well known. In light of the above, it is reasonable to view that the defendants were allowed to obtain land transaction permission by submitting the above contents of the agricultural management plan and forest management plan for the purpose of acquiring the land of this case only for the purpose of acquiring the land of this case and actually did not have any intention to manage the land of this case or to farming. Thus,

1. Summary of the facts charged

The summary of the above facts charged against Defendant 1 was as follows: “Defendant 1 was at the office of non-indicted 1 located in Seongdong-gu, Seoul on January 13, 2005; the number of non-indicted 2 was 70 million won per annum for the same 7 years; the number of non-indicted 40 million won per annum for the same 7 years; the number of non-indicted 40 million won per annum for the same 7 years; the number of non-indicted 2 was 50 million won per annum; the number of non-indicted 300 million won per annum; the number of non-indicted 2 was 50 million won per annum; the number of non-indicted 30 million won per annum for the same 7 years (number 4 omitted); the number of non-indicted 30,000 won per annum; the number of non-indicted 40,000 won per annum 9 (number 9 omitted); the number of non-indicted 160,000 won per annum 14

2. Determination

(a) the relevant regulations;

(1) Act on the Aggravated Punishment, etc. of Specific Crimes

Article 8 (Aggravated Punishment of Evasion of Taxes) (1) Any person who commits the crime provided for in Article 9 (1) of the Punishment of Tax Evaders Act shall be punished aggravatingly as follows:

1. Where the amount of tax which is evaded, refunded, not collected or not paid (hereinafter referred to as "amount of tax evaded, etc.") is not less than one billion won per year, the person shall be punished by imprisonment for life or by imprisonment for not less than five years;

2. Where the evaded tax amount, etc. is not less than five hundred million won but less than one billion won per year, the person shall be punished by imprisonment for a definite term of not less than three years.

(2) In cases falling under paragraph (1), a fine equivalent to two to five times the evaded tax amount, etc. shall be imposed concurrently.

(b) Punishment of Tax Evaders Act;

Article 9 (1) Any person who evades taxes or obtains a refund or deduction of taxes by fraudulent or other unlawful means shall be punished in accordance with the following subparagraphs: Provided, That an attempted crime of evading liquor tax shall be punished:

1. In cases of special consumption tax, liquor tax, or traffic, energy, and environment tax, the person shall be punished by imprisonment for not more than three years or by a fine not exceeding five times the amount of evaded tax or the amount of refunded or deducted tax;

2. In the case of stamp taxes, he shall be punished by a fine or minor fine in the amount not exceeding five times the evaded tax amount per each deed or account book; and

3. In the case of national taxes other than those provided for in subparagraphs 1 and 2, the person shall be punished by imprisonment for not more than three years, or by a fine equivalent to not more than three times the amount of evaded tax, refunded or deducted tax.

(2) In the case of the preceding paragraph, the tax amount to be evaded or evaded or the tax amount to be refunded or deducted shall be collected immediately.

(3) Income Tax Act;

Article 3 [Scope of Taxable Income] Income tax shall be imposed on all incomes as prescribed by this Act for a resident, and income tax shall be imposed only on the income accruing from domestic sources as prescribed in Article 119 for a nonresident.

Article 4 (Classification of Income) (1) Income of a resident shall be classified as follows:

3. Transfer income: Income accruing from a transfer of assets; and

(1) [Definition of Transfer] Article 4 (1) 3 and this Chapter "transfer" means that any assets are actually transferred for price due to sale, exchange, investment in kind in a corporation, etc., regardless of any registration or enrollment concerning such assets. In such cases, if a donee takes over any obligation of a donor of an onerous donation (excluding cases falling under the main sentence of Article 47 (3) of the Inheritance Tax and Gift Tax Act), the portion equivalent to the amount of such obligation in the donation amount shall be deemed to be actually transferred for price of such assets.

Article 94 (Scope of Transfer Income) (1) Transfer income shall be the following incomes generated in the year concerned:

1. Income accruing from transfer of land (referring to a lot of land subject to registration of land category in the cadastral record under the Cadastral Act) or buildings (including the facilities and structures annexed to such buildings);

2. Income accruing from transfer of any right to the real estate falling under any of the following items:

(a) Right to acquire real estate (including the right to acquire a building upon completion of its construction and its appurtenant land);

(b) Superficies;

(c) Chonsegwon and registered real estate lease; and

B. Whether the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes constitutes

(1) Issues

The crime of tax evasion stipulated in Article 9 (1) of the Punishment of Tax Evaders Act is a crime of evading a certain amount of tax obligation that a taxpayer is deemed to be liable to pay to the State and punishment is imposed. For the crime of tax evasion, tax claims should be established upon meeting the taxation requirements stipulated in the tax law under the no taxation without the law. Thus, as long as the taxation requirements under the tax law are not satisfied to enable the taxpayer to pay taxes, there is no room for establishing the crime of tax evasion as well as the crime of tax evasion (see Supreme Court Decision 2003Do5631, Jun. 10, 2005). In order to find Defendant 1 guilty of the charges of this case against the defendant 1, first of all, since it was examined before the defendant 1, 2005; Jan. 26, 2005; and Jan. 27, 2005; thus, it is assumed that the transfer income tax was generated upon the purchaser’s failure to obtain the ownership of the real estate or the right to transfer it.

(2) Whether there was a transfer of land

Where a sales contract is concluded on the premise that a long-term permission for land within a zone subject to land transaction permission under the National Land Planning and Utilization Act is to be obtained, the sales contract shall be null and void on the ground that the contract becomes effective retroactively until obtaining permission, while the contract is in a state of flexible invalidation in which the contract on the transfer of rights, such as ownership, does not take effect entirely, but the contract becomes null and void retroactively, and where both parties express their intent not to file an application for permission, and where both parties have entered into a contract on the exclusion of permission or evasion of the contract from the beginning (see, e.g., Supreme Court en banc Decision 90Da1243, Dec. 24, 1991; Supreme Court Decision 2005Do1033, Mar. 24, 2006; Supreme Court Decision 2005Do6557, Dec. 22, 2005).

In the instant case, as seen above, Defendant 1 purchased the entire real estate owned by Nonindicted Company 1 and transferred the status of purchaser to Nonindicted Company 2 and 3, but the ownership transfer registration was planned and implemented by Nonindicted Company 1 to directly transfer the real estate in the name of Nonindicted Company 2 and 3, and each contract was concluded on January 13, 2005, January 26, 2005, and January 27, 2005 with the intention to escape from the land transaction permission in the name of the contracting parties, and thus is conclusive and null and void (see, e.g., Supreme Court Decision 2005Do6557, Dec. 22, 2005). Accordingly, Defendant 1 merely paid the down payment after concluding the land sale contract to Nonindicted Company 2 and 3, and there was no actual lack of evidence to acknowledge that the said contract was null and void, even if it actually acquired the real estate in the status of the real estate in fact or was transferred to Nonindicted Party 23, the same conclusion was null and void.

(2) Whether the right to acquire real estate was transferred

The term "right to acquire real estate" means a right primarily for the acquisition of real estate itself, which directly covers the right to acquire real estate, or, even if not, at least, means the right to acquire real estate if the actual purpose of acquiring such right meets additional requirements in the acquisition of real estate itself in the future or goes through certain procedures (see Supreme Court Decision 98Du205 delivered on September 29, 200, etc.).

In addition, where a sales contract is concluded without permission from the competent authority on the premise that permission for a land transaction contract should be obtained, the sales contract is in a state of flexible invalidation, and even if the seller and the third party agreed on the sale contract in a state of flexible invalidation to be transferred to the buyer’s status, in light of the legislative intent of the land transaction permission system under the National Land Planning Act, the above agreement takes effect only when permission from the competent authority is required for the sale and purchase contract between the seller and the buyer in light of the legislative intent of the land transaction permission system under the National Land Planning Act, and the status of the buyer in a state of flexible invalidation can not be said to have been transferred to the third party by agreement between the seller and the buyer and the third party without such permission, and the third party cannot seek for the performance of the duty of cooperation in the procedure of directly applying for permission to the seller (see Supreme Court Decisions 98Du13492, Oct. 27, 200; 96Da762, Jul. 26, 1996, etc.).

As seen earlier, each contract was concluded under the purpose of evading permission for land transaction in the name of the contracting parties from the beginning of the beginning of the year to the non-indicted 2 and the non-indicted 3. Thus, it cannot be deemed that the status of the purchaser was transferred to the non-indicted 2 and the non-indicted 3. Even though the contract was in the state of flexible invalidation on January 13, 2005, the agreement between the non-indicted 1 and the defendant 2 and the non-indicted 3 cannot be deemed to have transferred the status of the purchaser under the above contract solely based on the agreement between them and the non-indicted 3 without the permission of the competent authority as to the above contract, and the non-indicted 2 and 3 cannot be deemed to have claimed for the performance of the duty to cooperate in the procedure of land transaction to the non-indicted 1, and there is no other evidence to support that the status of the purchaser under the above contract was transferred to the non-indicted 2 and the non-indicted 3.

(3) Meanwhile, Supreme Court Decision 91Do2439 delivered on September 14, 1992, Supreme Court Decision 95Nu15070 delivered on June 13, 1997, Supreme Court Decision 2004Du5058 delivered on June 24, 2005, Supreme Court Decision 94Nu8020 delivered on April 11, 1995, which held by a public prosecutor as a precedent supporting the facts charged of this case, are all related to a sale contract for land or transaction within a land transaction report zone, which is not a land transaction permission zone, or a sale contract for land without any limit under public law, or a real possession of the land by paying the purchase price after the conclusion of the contract, etc., and payment of the property tax shall be deemed to have been concluded within a land transaction permission zone, and it is inappropriate to invoke this case, unlike this case’s case’s case’s case’s case where a sales contract for land within the land transaction permission zone should be deemed to have been concluded.

3. Conclusion

Therefore, as long as it cannot be deemed that there was a transfer of the right to acquire land or real estate, which is a taxation requirement of capital gains tax, the remainder of the facts charged in this case without considering the need to further examine, and thus, the facts charged in this case is a case where there is no proof of crime, the judgment of

Judges Kim Jong-ho (Presiding Judge)