Defendant

Defendant

Park stone

Attorney Park Ho-ho

Daejeon District Court Decision 2005Gohap505 Delivered on April 21, 2005

1. The part of the judgment below regarding the defendant shall be reversed.

2. Defendant shall be punished by a fine of KRW 7,000,000.

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

4. The primary facts charged against the Defendant as to the violation of the Act on Special Measures for the Registration of Real Estate among the facts charged in the instant case and the conjunctive facts charged as to the false entry of the authentic copy of the authentic deed added at the trial are not guilty.

1. Summary of grounds for appeal;

The sentence imposed by the court below on the defendant is too unreasonable.

2. Ex officio determination

Before determining the Defendant’s assertion of unreasonable sentencing, we examine it ex officio.

(a) Alteration of indictment;

In the first instance trial, the prosecutor applied for changes in the indictment with respect to the violation of the Act on Special Measures for the Registration of Real Estate (hereinafter “Special Measures for the Registration of Real Estate”) while maintaining the facts charged as to the violation of the Act on Special Measures for the Registration of Real Estate (hereinafter “Special Measures for the Registration of Real Estate”) and filed a motion for changes in the indictment with respect to adding the facts of false entries in

B. misunderstanding of facts or misapprehension of legal principles

As seen below, although the Defendant cannot be held liable for a violation of the Act on Special Measures for the Registration of Real Estate, the lower court erred by misapprehending the facts or by misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment, and thus, the above part shall be reversed. Since the lower court rendered a single sentence in relation to other criminal facts of the Defendant, which the lower court found the Defendant guilty and concurrent crimes under the former part of Article 37 of the Criminal Act, the part of the lower judgment concerning the Defendant

3. Judgment on the primary facts charged in violation of the Act on Special Measures for the Registration of Real Estate among the facts charged in the instant case

A. Summary of the facts charged

On July 20, 2003, the Defendant conspired with the Co-Defendant 1 in the first instance trial, entered into a land transaction contract with the Defendant for sale of 26,209 square meters of forest land (land number omitted) owned by the Defendant within the land transaction permission zone to the co-defendant 200 million won in purchase price, and subsequently received full payment of the price on August 20 of the same year, the Defendant filed an application for the registration of transfer of ownership, which is the cause of registration, with the name of Non-Party 1 at the office of the same day, in the second instance of the Ydong-si, the Yan-gun, the Yan-gun, the Seoul Special Metropolitan City, the Seoul Special Metropolitan City Office, the competent registry office on July 22, 2003, stating the Defendant’s mother as having given free donation to the co-defendant 1 and had him file an application for the registration of transfer of ownership with the registration registry office on the land of this case as the cause of registration.

(b) The provisions and scope of Article 6 of the Act on Special Measures for the Registration of Real Estate;

Article 8 (2) of the Act on Special Measures for the Registration of Real Estate and Article 6 of the Act on Special Measures for the Registration of Real Estate.

However, Article 6 of the Act on Special Measures for the Registration of Real Estate limits the subject to “any person who is obliged to apply for the registration of ownership transfer under Article 2 shall not apply for the registration by stating the grounds for registration falsely in the application for registration, or apply for the registration other than the registration of ownership transfer.”

Meanwhile, Article 2(1) of the same Act provides that "a person who enters into a contract whose contents are "real estate ownership transfer" shall file an application for the registration of ownership transfer within 60 days from the date specified in any of the following subparagraphs: Provided, That this shall not apply where the contract is cancelled, cancelled, or null and void: Provided, That this shall not apply where the contract is cancelled, cancelled, or null and void." Thus, the above provision is a provision based on the premise that the contract, the content of which is the transfer of real estate ownership, is valid (see

Therefore, the provision that “a person who shall apply for the registration of ownership transfer pursuant to the provisions of Article 2” under Article 6 of the same Act shall be deemed as a provision premised on the validity of the contract itself, the content of which is the transfer of real estate ownership

C. Nature of land transaction permission under the National Land Planning and Utilization Act

According to the investigation report on the preparation of prosecution clerks bound in the 17th page of the investigation records and the statement on the public notice on the designation of land transaction permission zone attached thereto, the land in this case is recognized as having been located within the land transaction permission zone for five years from February 17, 2003.

However, Article 118(1) of the National Land Planning and Utilization Act provides that "the parties who intend to enter into a contract for the transfer or establishment of ownership or superficies on the land located within the zone subject to permission shall jointly obtain permission from the head of a Si/Gun/Gu under the conditions as prescribed by the Presidential Decree." Article 118(6) provides that "the land transaction contract entered into without obtaining permission under paragraph (1) shall not take effect." Thus, the land transaction contract for the land located within the zone subject to permission for land transaction shall take effect only after obtaining permission from the competent authority, and, in principle, be null and void before obtaining permission. However, the contract entered into on the premise that the permission should be granted (the contract entered into on the premise that the land is null and void) shall take effect retroactively, but if the contract is entered into on the premise that the permission is to be granted, it shall be null and void retroactively if it is entered into at the beginning (see Supreme Court en banc Decision 90Da1224

D. Effect of the instant land transaction contract

According to evidence duly admitted and examined by the court below and each statement of the police interrogation protocol against the defendant and the co-defendant in the court of first instance on July 20, 2003, when the defendant and the co-defendant in the court of first instance entered into a sale contract, the land in this case was located within the land transaction permission zone on July 20, 2003, when the co-defendant in the court of first instance entered into a sale contract. The defendant entered into a sale contract with the co-defendant in the court of first instance on July 30, 2003 that the defendant would sell the land in this case to the co-defendant in the court of first instance for KRW 200 million. However, the land in this case is forest and land transaction permission for neighboring Si/Gun residents, but the co-defendant in the court of first instance could not obtain land transaction permission because his domicile exceeded the adjacent Si/Gun of the land in this case, the defendant and the co-defendant in the court of first instance knew that the registration of ownership transfer can be completed without obtaining land transaction permission, and the registration of ownership transfer was not completed from the court.

According to the above facts, the land transaction contract between Co-Defendant 1 and Defendant on the land of this case is concluded with the intention to complete the registration of ownership transfer by pretending the gift without obtaining land transaction permission, and it is final and conclusive as it constitutes a case where it was concluded with the intention of excluding or evading permission from the beginning.

E. Sub-committee

Therefore, the primary facts charged against the defendant's violation of the Act on Special Measures for the Registration of Real Estate cannot be deemed as satisfying the elements of Article 8 (2) and Article 6 of the same Act on the premise that the contract with the ownership transfer of real estate itself is valid, and there is no other evidence to prove the facts charged, and thus, the defendant should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, despite the absence of any evidence to prove the facts charged, there is an error of misunderstanding the facts charged against the defendant or misunderstanding the legal principles

4. Conclusion

Therefore, by applying Article 364(2) and (6) of the Criminal Procedure Act, the part of the judgment of the court below as to the defendant is reversed ex officio, and it is again decided as follows after pleading.

The contents to be explained by this court here shall be deleted from the facts of the judgment of the court below, and the "land transaction contract" in the 12th part of the same judgment shall be changed to "land transaction contract", and except for the deletion of all of the facts of the crime of the 13th and lower judgment, it shall be cited as it is by applying Article 369 of the Criminal Procedure Act, since it is the same as each corresponding part of the judgment of the court below.

1. Article applicable to criminal facts;

Article 141 subparagraph 6 of Article 141 of the National Land Planning and Utilization Act, Article 118 (1) of the same Act, and Article 30 of the Criminal Act.

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. As to the primary facts charged of violating the Act on Special Measures for the Registration of Real Estate among the facts charged in the instant case

Of the facts charged in the instant case against the Defendant, the summary of the facts charged as to the violation of the Act on Special Measures for the Registration of Real Estate is as stated in Article 3.1. (a). This part of the facts charged constitutes a case where there is no proof of facts constituting a crime as stated in paragraph (3) and thus, is acquitted by applying the latter part

2. Of the facts charged in the instant case, as to the ancillary facts as to the false entry of the authentic copy of the authentic deed added at the trial

A. Summary of the facts charged

On August 22, 2003, the defendant conspired with the co-defendant in the first instance trial trial, at the Daejeon District Court's disposition office located in the Daejeon District Court 8-11-11 of the Seoul Special Metropolitan City, Chungcheongnam-gun, the defendant in the land transaction permission zone, and the fact that the co-defendant in the first instance trial is unable to purchase the land in the name of the defendant in the name of the defendant in the land transaction permission zone and register it as a donation of the cause for registration. As if the defendant's mother non-indicted 2 donated the land in this case to the co-defendant in the first instance trial, he prepared a donation contract as if he had the non-indicted 1, who knows that it is possible, made the above person in charge of the first instance court to file an application for the registration of transfer on the ground of "donation" on the land in this case, and made the public official in the name of co-defendant 2 to make a false report on the fact that it is false in the real estate register, the original copy of a notarial deed.

B. Protection of the legal interest and elements of the crime of false entry in the authentic deed

The crime of false entry in the original of a notarial deed under Article 228(1) of the Criminal Act is a crime, the legal interest of which is protecting the public confidence in official documents concerning the rights and duties of which special credibility is recognized, and is established by making a false report against the truth to the public, and making the public official enter false facts inconsistent with the substantive relations with regard to the matters proved in the original notarial deed.

In addition, the term "non-performance" refers to the entry of facts against objective truth in important points. Although there is any defect in the entry procedure, if the entries conform to the parties' intentions or substantive rights, it shall not be deemed to be a false entry. Thus, even if the legal effect of the entries is null and void, it shall not be deemed to be a false entry (see, e.g., Supreme Court Decisions 2001Do5414, Jan. 27, 2004; 2004Do3584, Oct. 15, 2004).

C. Determination

In the case of this case, even though the defendant and the co-defendant of the first instance court actually concluded a sales contract on the land of this case, even though they completed the registration of ownership transfer on the ground of "donation" on the real estate registration register, the defendant and the co-defendant of the first instance court intended to complete the registration of ownership transfer on the land of this case on the ground of "donation", and according to their agreement, the registration of ownership transfer on the real estate of this case was completed on the real estate registration register based on "donation". Thus, even if the above registration becomes null and void under private law, it is difficult to deem that the above registration was made at the time of entering false facts in

In addition, since there is no evidence to prove the above facts charged, the above facts charged constitute a case where there is no evidence of crime, thereby not guilty under the latter part of Article 325 of

Judges Lee Ho-hun (Presiding Judge)