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무죄
red_flag_2(영문) 서울동부지방법원 2017. 9. 14. 선고 2016고단3229 판결

[도시및주거환경정비법위반][미간행]

Escopics

Defendant

Prosecutor

Visits (prosecution) and Park Jong-hee (Public Trial)

Defense Counsel

(B)Dong Law Firm, Attorneys Han-gu et al., Counsel for the defendant-appellant

Text

Defendant shall be punished by a fine of KRW 700,000.

When the defendant fails to pay the above fine, the defendant shall be confined in the old house for the period calculated by converting 100,000 won into one day.

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

Of the facts charged in the instant case, the failure to comply with perusal or reproduction other than the CM service contract among the documents and related materials concerning the implementation of the improvement project shall be acquitted.

Criminal facts

From the early October 2014, the Defendant was elected as the president of the association on April 2, 2015, and currently is the head of the association. The Defendant was selected as the head of the association on April 2, 2015.

1. The point of refusing to comply with the request for perusal or reproduction of documents and related materials concerning the implementation of the rearrangement project;

Where partners, etc. request perusal or reproduction of documents and related materials concerning the implementation of a rearrangement project including a contract for the selection of a service company, minutes of a general meeting of a partnership and a council of representatives, a management and disposal plan, a public document on the implementation of the relevant rearrangement project, details of deposits and withdrawals of monthly funds, details on the amendment of the contract with the service company, matters on the amendment of the rearrangement project cost, the register of association members, etc., the executive officers of the association shall comply with the request within 15 days. However, even though Nonindicted 1, a member of the association requested the Defendant to peruse or copy the service contract on December 4, 2014, the Defendant did not comply therewith within 15

2. In addition to the matters stipulated in the budget without a resolution of the general meeting, point of the contract to be borne by members);

Except as otherwise expressly provided for in the method, interest rate, and method of repayment and budget, matters on contracts to be borne by partners shall undergo a resolution at the general meeting of the association. On December 30, 2014, the general meeting of the association held that “Non-Indicted 2 corporation may borrow a loan with no interest-free loan of KRW 53 billion to the association, interest-free loan of KRW 150 billion, and interest-free loan of KRW 150 billion, as business expenses. The basic relocation expenses are differentiated according to the appraised value, and the association member becomes a borrower within the limit of KRW 17 billion in direct loan as a borrower.” However, the Defendant decided on June 23, 2015 at the office of the association located in Songpa-dong Seoul Special Metropolitan City ○○dong on June 23, 2015 without the resolution of the general meeting of the association. Nonindicted 2 corporation set a loan of KRW 26.4 billion to the association with no interest-free loan of KRW 53 billion and no interest-free loan of KRW 29.3 billion.3 billion.”

Summary of Evidence

1. The defendant's partial statement in the first trial record;

1. The legal statement of Nonindicted Party 1

1. Partial statement of Nonindicted 3

1. Some of the suspect interrogation records of the accused by the prosecution (including Nonparty 1);

1. A protocol of partial police interrogation of the accused;

1. The police statement of Nonindicted 3 and Nonindicted 1

1. A written request for perusal or reproduction of information disclosure data, a money loan contract, a business agreement, a written guidance for relocation, and details of a civil petition;

[In light of the aforementioned evidence, when the president of the partnership is unable to perform his duties due to his failure, etc., the chief of the association is appointed by a resolution of the board of directors to act on behalf of the chief of the association (Article 16(6)). The defendant is appointed as the acting representative according to the above procedure and the report is issued with the certificate of completion of report. In light of the above evidence, the defendant acting on behalf of the chief of the partnership is the subject of the crime.

In addition to the matters prescribed in the budget without a resolution of the general meeting, the issues related to the contract to be borne by the members shall be considered.

Article 24 (3) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents ("the Act") stipulates that the contract to be borne by members shall be subject to resolution by the general meeting, except as otherwise provided in the budget;

According to the above evidence, 1. 30 billion won was decided at the general meeting on December 30, 2014 to move expenses for the association members, 2. 1. 4 billion won was decided at the total amount of 1 billion won, and 2. 4 billion won was decided at the general meeting to move expenses for the association members, 1. 5 billion won was decided at the rate of 1. 4 billion won, and 2. 4 billion won was decided at the basic rate of 1. 4 billion won was decided at the basic amount of moving expenses for the association members. 2. 4 billion won was decided at the basic amount of moving expenses for the association members, 1. 4 billion won was decided at the basic amount of moving expenses for the association members. 2. 4 billion won was decided at the basic amount of moving expenses for the association, 1. 4 billion won was decided at the basic amount of moving expenses for the association. 2. 4 billion won was decided at the basic amount of moving expenses for the association without the general meeting’s resolution.

Application of Statutes

1. Article applicable to criminal facts;

Article 86 subparagraph 6, Article 81 (6) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (the fact of refusing to comply with the request for access to and reproduction of documents and related materials for the implementation of a rearrangement project, the selection of fines), Article 85 subparagraph 5, and Article 24 (3) 5 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (the fact of contracts that will be borne by the members

1. Aggravation for concurrent crimes;

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

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

It appears that there is no material to regard that the instant association actually damaged the criminal facts. The defendant appears to have decided his behavior in accordance with the opinion of the staff and the relevant legal office in the course of performing the housing reconstruction project. The defendant seems to have actively met the demands of considerable members when deciding to increase the basic relocation expenses, and have been processed through the representatives' meeting, etc. after inquiring of the law office, etc., and the defendant's initial crime except the suspension of indictment, and other factors of sentencing under Article 51 of the Criminal Act, such as the defendant's age, character, character, environment, motive, means and consequence of the crime, etc., such as the defendant's age, character, environment, motive, means and consequence

The acquittal portion

1. Summary of the facts charged

From the early October 2014, the Defendant was elected as the president of the association on April 2, 2015, and currently is the head of the association. The Defendant was selected as the head of the association on April 2, 2015.

1. The point of refusing to comply with the request for perusal or reproduction of documents and related materials concerning the implementation of the rearrangement project;

Where partners, etc. request perusal or reproduction of documents and related materials pertaining to the implementation of a rearrangement project including a contract for the selection of a service company, a general meeting of a cooperative and a meeting of representatives of a cooperative, a written project implementation plan, a management and disposal plan, a written public document on the implementation of the relevant rearrangement project, a monthly deposit and withdrawal of funds, a detailed statement on the amendment to the contract with the service company, matters on the amendment to the cost of the rearrangement project, a list of association members, etc., the executive officers of the cooperative shall comply with the request within 15 days. On December 4, 2014, Nonindicted 1, a member of the cooperative, requested perusal or reproduction of documents and relevant materials from the cooperative. On December 4, 2014, the defendant failed to comply with the request by the cooperative and the subcommittee of the cooperative in connection with the construction cost contract with the non-indicted 2 corporation, the minutes or visual contents of the final consultation at the cooperative, the final negotiation proposal by the cooperative, and the final negotiation proposal by the non-indicted 2 corporation, and the defendant failed to comply with the request by the non-indicted 2 corporation and the Association.

2. Determination

This part of the facts charged: ①, ②, ④, ⑤ each of the data requested for perusal or reproduction is not subject to perusal or reproduction; ③ the data requested for perusal or reproduction is not subject to perusal or reproduction; ③ the complainant was already in possession of the data; ③ the clean business system operated by Seoul Special Metropolitan City was confirmed; and ② the method of selecting CM service companies among the data requested for perusal or reproduction is deemed to have been received through Nonindicted 3 after perusal or reproduction.

3. Conclusion

If so, this part of the facts charged does not constitute a crime and thus, is pronounced not guilty pursuant to the former part of Article 325 of the Criminal Procedure Act, and the defendant does not consent to the public announcement of the verdict of innocence, so the public announcement of the judgment of innocence is not ordered pursuant to the proviso of Article

For transfer of judge

(1) The prosecutor stated in the bill of indictment that "a loan without a resolution of the general meeting is the point of borrowing funds without a resolution of the general meeting", and stated the applicable provisions in Article 85, subparagraph 5 of Article 85 and Article 24 (Paragraph 3) 2 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. Thus, the prosecutor is filing a prosecution on

2) A prosecutor’s indictment and a written application for the amendment of a bill of indictment filed on June 29, 2017, “in addition to the matters stated in the budget, the matters concerning the contract to be borne by the union members are not explicitly stated, but the investigation and trial have been sufficiently conducted in the course of investigation and public trial, and there is no disadvantage in the exercise of the defendant’s right to defense, thereby recognizing it without demanding the amendment of a bill of indictment

Note 3) The remainder of interest (1,46.9 billion won = 290.3 billion won - 1,43.4 billion won by the resolution of the Assembly) except for the basic moving expenses is within the limit of 150 billion won by the resolution of the Assembly.

4) Therefore, it is clear that the basic moving expenses are leased within the limit of KRW 17.2% of the total value of the rights of the union members, and even if the interest rate increases and exceeds KRW 20.1 billion, it is not necessary to obtain a resolution at the general meeting of the union separately. Such logic is that if the total amount exceeds the limit of KRW 117.2% of the value of the rights of the union members, it shall be subject to a resolution at the general meeting of the union, even if the interest on the basic moving expenses is below KRW 20.1 billion, it shall be subject to a separate resolution.