[2] In a case where the defendant who is the chief of the general assembly of the Gap church, was prosecuted for violating the Building Act by illegally expanding the building by means of constructing warehouse facilities on the rooftop of the building without permission for viewing under his jurisdiction, the case holding that since the Gap church is an unincorporated association as Eul's representative, and the defendant is an employee of the Gap church, the defendant cannot be punished under Article 112 (4) of the former Building Act on the ground that he is in the status of "individual" under the joint penal provisions of Article 11

[2] In a case where the Defendant, who is the head of the general assembly of the Gap church, was indicted for violating the Building Act by illegally expanding the building by means of constructing warehouse facilities on the rooftop of the building without permission for viewing under his jurisdiction, the case holding that the lower court erred by misapprehending the legal principles as to joint penal provisions under Article 112 (1) of the former Building Act, on the ground that the Defendant, who is the head of the general assembly of the Eul church, is an unincorporated association Eul, and the Defendant is an employee of the Gap church, and the Defendant cannot be punished pursuant to the joint penal provisions under Article 112 (4) of the former Building Act, on the ground that he was deemed as an individual, since he was in the status of "individual" under the joint penal provisions under Article 112 (4) of the former Building Act, on the ground that he actually performed the act of extending the building without permission,

1. The summary of the facts charged in the instant case is that the Defendant was the chief of the construction department of the ○○○○○ Council, and the person who intends to extend a building was illegally extended the building by starting the construction of 150 square meters on the rooftop of the building on September 10, 2015 and completing the construction of the warehouse on the following day without obtaining permission from the relevant administrative agency, despite obtaining permission from the relevant administrative agency.

The Prosecutor instituted the instant public prosecution by applying Articles 112(4), 108(1), and 11(1) of the former Building Act (amended by Act No. 1343, Jul. 24, 2015; hereinafter the same), which are joint penal provisions.

2. Article 108(1) of the former Building Act provides that a building owner who constructed a building without obtaining permission under Article 11(1) of the same Act shall be punished, and Article 112(4) of the same Act provides that “If an agent, employee, or other worker of an individual commits an offense under Articles 107 through 111 in connection with the business of the individual, not only shall the offender be punished, but also the individual shall be punished by a fine under the relevant provisions.” However, even if an offense was committed by an employee of an unincorporated association, the individual member of the unincorporated association shall not be punished on the ground that the individual member of the unincorporated association is in the position of “individual” under Article 112 of the same Act (see Supreme Court Decision 94Do325 delivered on July 28, 195).

3. According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, the ○○○○ Association is an unincorporated association that has represented the Nonindicted Party, and the Defendant is the person employed by the ○○○○○○○ Association. Examining these facts in light of the aforementioned legal principles, the Nonindicted Party is deemed to have the status of “individual” under Article 112(4) of the former Building Act, and the Defendant cannot be punished pursuant to the same provision.

Nevertheless, on the grounds stated in its reasoning, the lower court found the Defendant, who is the head of the general assembly of ○○○○○ church, as a person who actually performed an unauthorized extension and constitutes “offenders pursuant to Article 108(1) of the former Building Act” under Article 112(4) of the same Act, guilty of the facts charged in this case against the Defendant. In so determining, the lower court erred by misapprehending the legal doctrine on joint penal provisions under Article 112 of the former Building Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit [In addition, since the ○○○○○○ church is an unincorporated association, the Defendant is not subject to Article 112(3) of the former Building Act (see Supreme Court Decision 94Do325, supra).

4. Therefore, without examining the remaining grounds of appeal, 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 on the bench

Justices Jo Hee-de (Presiding Justice)