[2] Whether the joint penal provision of Article 81(2) of the former Building Act is a penal provision for an actor and a penal provision for a work owner who is the main body of the act of violation (affirmative)

[3] Whether a violation of the former Public Health Control Act due to a violation of duty to report constitutes a crime of omission (affirmative), and the meaning of “business operator” who is the person obligated to report

1. As to the violation of the Building Act

A. The former Building Act (amended by Act No. 8219, Jan. 3, 2007; hereinafter the same) includes not only a tangible alteration of the use of a building, but also an act of using it for any purpose other than its original purpose (see, e.g., Supreme Court Decisions 2002Do5396, Dec. 24, 2002; 2005Do4592, Sept. 29, 2005).

Examining the reasoning of the judgment below in light of the above legal principles and the records, the court below's decision that the defendants provided the first dormitory building of ○ University No. 1 to the participating in the Korean Unification Domnasium without permission as a lodging facility equipped with guest rooms, street, coffee shop, sett, etc. is just and acceptable, and there is no error in the misapprehension of facts against the rules of evidence or the misapprehension of legal principles as to the alteration of use under the Building Act, as otherwise alleged in the ground of appeal.

B. However, the court below's decision that decided ex officio as to the above change of use by Defendant 1 and 2 as a violation of Articles 78 and 14 of the former Building Act is hard to accept for the following reasons.

The application of the penal provisions of Articles 78 and 14 of the former Building Act is limited to certain business owners, such as building owners and construction contractors, while the joint penal provisions of Article 81 (2) of the same Act is extended to those who actually execute the relevant business in order to ensure the effectiveness of the above penal provisions when a person who is not a business owner or a construction executor actually executes the relevant business, and thus, if such person commits a violation of the above penal provisions in relation to the performance of the relevant business, the penal provisions of the offender are deemed to be the same as the penal provisions of the offender so that he can be punished under the above joint penal provisions, and the penal provisions of the business owner who is the main agent to whom the violation occurred (see, e.g., Supreme Court en banc Decision 95Do2870, Jul. 15, 199; 2003Do3984, Dec. 22, 2005).

However, according to the facts charged in this case and the facts acknowledged by the court below, Defendant 1 is merely the principal of the ○ University established and operated by the defendant educational foundation, and Defendant 2 does not have the position of "project owner who has altered the use of a building" subject to Article 78 of the former Building Act. Thus, in relation to the above Defendants' alteration of use, it cannot be punished directly as a violation of Articles 78 and 14 of the former Building Act. It is only subject to Articles 78 and 14 of the former Building Act only under Article 81(2) of the former Building Act.

Nevertheless, the court below did not apply Article 81 (2) of the former Building Act, which is a punishment provision, to this part of the facts charged by the above defendants, and immediately decided that the above defendants violated Articles 78 and 14 of the same Act. The court below erred by misapprehending the legal principles on the application of Articles 78 and 14 of the former Building Act or joint penal provisions under the former Building Act, and it is obvious that such violation affected the judgment. Thus, the court below's judgment that found the above defendants guilty of violating the Building Act against the above defendants cannot be reversed.

2. As to the violation of the Public Health Control Act

A. The summary of the facts charged against the Defendants is as follows: “Defendant 1 is the dean of the ○ University, Defendant 2 is the minister of the ○ University, and Defendant 2 is the minister of the ○ University, not in collusion with the head of the ○ University. From October 12, 2006 to October 13 of the same month, ○ University: (a) provided approximately 200 participants in the first dormitory of the ○ University of the ○ University of the ○ University of the ○ University of the ○ University of the ○ University of the ○ University of the ○ University of the 100 guest room, seminars room, and lighting and accommodation with KRW 10 million; and (b) Defendant school juristic person committed the above violation in relation to the Defendant’s business at the same time and place.” The lower court acknowledged the facts as stated in its reasoning, and found the Defendants guilty as to this part of the facts charged.

B. However, prior to the judgment on the Defendants’ grounds of appeal, we cannot accept the above judgment of the court below for the following reasons.

Article 3(1) of the former Public Health Control Act (amended by Act No. 8852 of Feb. 29, 2008; hereinafter “former Act”) provides that “a person who intends to run a public health business shall have facilities and equipment prescribed by Ordinance of the Ministry of Health and Welfare for each type of public health business and report to the head of the relevant Si/Gun/Gu.” Article 20(1)1 provides that “a person who fails to report under the former part of Article 3(1) shall be punished.” In light of the form and purport of the provision, a violation of the former Public Health Control Act due to a violation of the duty to report constitutes a crime of omission that can only be realized by omission. On the other hand, a joint principal offender among a crime of omission is subject to a common obligation to a large number of crimes, and a public health business obligation is granted to a person who intends to run a public health business, and in this context, “a person who intends to operate a public health business” refers to a person who belongs to an employee or an assistant of 200.87.

However, even according to the facts charged in this case and the facts acknowledged by the court below, the founder and the manager of the ○ University is the school juristic person of the defendant, the president is the husband of the defendant 1, the defendant 1 is the principal of the ○ University, and the defendant 2 is only the chief of the ○ University. Thus, the defendant 1 and 2 are merely the teachers or staff of the ○ University, which is a private school, and are not the subject of the business rights and duties. Thus, the defendant 1 and 2 cannot be deemed as the persons liable for the duty to report under the former part of Article 3 (1) of the Public Health Control Act, and therefore, the above defendants cannot be punished as a violation of Article 20 (1) 1 of the former Act.

Nevertheless, the court below found Defendant 1 and 2 guilty of all of the charges against the Defendants on the premise that he is the criminal subject of the violation of the above provision of law. The court below erred by misapprehending the legal principles on the criminal subject in the violation of Article 20 (1) 1 of the former Act, and it clearly affected the judgment. Thus, this part of the court below's judgment cannot avoid reversal without examining the grounds of appeal.

3. Scope of reversal

Therefore, the part against Defendant 1 and 2 in the judgment of the court below and the part against Defendant school juristic person which violated the Public Health Control Act should be reversed. Since the court below imposed one punishment on Defendant school juristic person for concurrent crimes with the violation of the above Public Health Control Act and the violation of the Building Act, the judgment of the court below should be reversed in its entirety.

4. Conclusion

Therefore, all of the judgment 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 on the bench.

Justices Park Si-hwan (Presiding Justice)