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

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

In order to order the provisional payment of an amount equivalent to the above fine.

A. Legal principles

The defendant's installation of warehouse facilities (hereinafter referred to as the "factory facilities of this case") on the rooftop floor is not extension of a building, but construction of a temporary building, and there is no obligation to report construction of a temporary building constructed on the rooftop, and the defendant did not have intention to violate the Building Act.

B. Unreasonable sentencing

The punishment of the court below (2 million won of fine) is too unreasonable.

2. Determination

A. Ex officio determination

(1) In the trial, the prosecutor applied for permission to amend the Bill of Indictment containing the addition of “Article 112(4) of the Building Act” among the applicable provisions of the Act in the applicable provisions of the Act in the trial of the party, and this court permitted it and thus, the judgment of the court below cannot be

(2) The Defendant’s defense counsel asserted that, through the summary of the oral argument submitted on March 31, 2017, Article 112, which is a joint penal provision of the Building Act, there is no provision punishing an unincorporated association under Article 112, which is a joint penal provision of the Building Act, and thus, in principle, cannot be punished pursuant to Article 112 of the Building Act with respect to the ○○○○○○○ branch, an unincorporated association under the principle of no punishment without law, and the Defendant is a person employed by the ○○○○○ branch, and thus, the Defendant cannot be punished pursuant to Article 112 of the Building Act in accordance with the relevant legal doctrine

Unlike the fact that an unincorporated association can be the subject of judicial rights and obligations like a legal entity, it does not have the ability to commit such crime unless otherwise expressly provided by law, and the affairs of the organization are realized by the representative act in accordance with the decision-making of the representative body which is the natural person representing the organization. Therefore, in case where the owner of a building (Article 2 (1) 12 of the Building Act) is an unincorporated association and a representative body is a natural person, a representative body is a natural person, inasmuch as the owner of a building (Article 2 (1) 12 of the Building Act) orders construction concerning the construction, substantial repair, and change of the use of a building, installation of building equipment, or construction of a structure, or an on-site manager is appointed to do so, the owner of a building, who violates Article 108 (1) of the Building Act, means a natural person who is the representative body of an unincorporated association (see

The application of the penal provisions of Articles 108(1) and 11(1) of the Building Act is limited to certain business entities, such as building owners and construction contractors. On the other hand, the joint penal provisions of Article 112(4) of the same Act is extended to those who actually execute the business in order to ensure the effectiveness of the above penal provisions when there is a person who actually executes the business, so that such a person who actually performs the business, in connection with the performance of business, commits a violation of the above penal provisions, it is deemed that the provision punishing the violator in accordance with the above joint penal provisions and the provision punishing the person who actually performs the business (see Supreme Court Decisions 2003Do3984, Dec. 22, 2005; 2008Do9476, Feb. 12, 2009, etc.).

In this case, the non-party representative of the ○○○○ church, an unincorporated association, becomes the owner of a building constructed in violation of Article 11(1) of the Building Act, which is stipulated in Article 108(1) of the Building Act. The defendant, who is the head of the general assembly of the ○○○ church, shall be the person who actually performed an extension without permission and actually performed an extension without permission, shall be deemed to be the "offender under Article 108(1) of the Building Act" as stipulated in Article 112(4) of the Building Act. Thus, in accordance with the above provision, the above provision is subject to Article 108(1) and Article 11(1) of the Building Act.

B. Judgment on misapprehension of legal principles

Despite the above reasons for ex officio destruction, the defendant's assertion of misapprehension of legal principles is still subject to the judgment of this court.

Article 15 (5) 8 of the Enforcement Decree of the Building Act provides that "a temporary building consisting of containers or similar ones, which is used as a temporary office, a temporary warehouse or a temporary lodging establishment (excluding those constructed on the rooftop of a building: Provided, That the same shall not apply to those constructed on the rooftop of a factory from July 1, 2009 to June 30, 2015 and from July 1, 2016 to June 30, 2019)." The proviso to the above subparagraph was added to support the use of land and corporate activities of a factory in accordance with partial revision order, such as the Enforcement Decree of the Building Act for the temporary administrative suspension on June 30, 209. Considering the above revision history, the purpose of amendment, etc., it is reasonable to regulate a temporary building on the rooftop of a building, but it is reasonable to deem that the construction of a new temporary building by the defendant is not a temporary building nor a new building on the rooftop of a factory for a certain period following the construction of a new building.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364 (2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the judgment below is reversed, and it is again decided as follows after pleading.

Articles 112(4), 108(1), and 11(1) of the Building Act; selection of fines

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

On the other hand, however, the defendant removed the warehouse building extended by this case as a first offender and completed the restoration to its original state.

The above conditions of sentencing, which are disadvantageous or favorable to the defendant, and the age, character, conduct and environment of the defendant, and all other conditions of sentencing as shown in the argument of this case shall be determined the same as the disposition.

Judges Cho Sung-sung (Presiding Judge) regularly Kim Jong-sung

1) According to Article 2 subparagraph 2 of the Enforcement Decree of the Building Act, the term “extension” means increasing the building area, total floor area, number of floors, or height of a building on an existing site.