Defendant

Both parties

Visits (prosecution) and Efficiencies (Public Trial)

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

Seoul Eastern District Court Decision 2016 Height3229 Decided September 14, 2017

The judgment of the court below is reversed.

A defendant shall be punished by a fine of 500,000 won.

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.

Of the facts charged in this case, the violation of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents due to the failure to comply with the request for perusal or reproduction.

The summary of the acquittal part in this judgment shall be publicly notified.

1. Summary of grounds for appeal;

A. Defendant

1) misunderstanding of facts and misapprehension of legal principles

In light of the following points, the lower court erred by misapprehending the facts or misapprehending the legal doctrine, thereby finding the Defendant guilty of failing to comply with the request for perusal or reproduction of the CM management service contract, and of violating the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents due to the conclusion of the contract that is a partner without a resolution of the general

A) The fact that the CM service contract does not comply with the request for perusal or reproduction

(1) At the time, the Defendant cannot be deemed to be a criminal agent under Article 86 subparagraph 6 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 14567, Feb. 8, 2017; hereinafter the same shall apply) since the Defendant was merely an acting head of the Housing Redevelopment and Improvement Project Association (hereinafter referred to as “instant partnership”) in Zone II of the ○○ Urban Renewal Promotion Zone, and was not an partnership’s officers.

② At Nonindicted 1’s request, Nonindicted 1 sent a copy of the CM service contract to Nonindicted 1.

③ Nonindicted 1 withdrawn and revoked the request for perusal or reproduction of the instant case through an agreement with the union employees or the Defendant.

B) Conclusion of a contract that will become the burden of a partner without a resolution of the general meeting

① From the extraordinary general meeting on December 30, 2014, there was a resolution on the borrowing of funds in excess of the limit of the moving expenses under the Monetary Loan Agreement (hereinafter “instant monetary loan agreement”) concluded on June 23, 2015 with Nonindicted Co. 2 Co., Ltd. (hereinafter “Nonindicted Co. 2”) at the special meeting on June 30, 2015 (the agenda item (hereinafter “instant monetary loan agreement”), and on April 2, 2015, at the ordinary meeting, there was a resolution on the borrowing of the said funds again at the ordinary meeting.

② Since the conclusion of a contract for construction works (case No. 3) resolved at an extraordinary general meeting on December 30, 2014 is not decided on the matters concerning the borrowing of relocation expenses, it cannot be deemed that a resolution was adopted at the general meeting to restrict the limit of relocation expenses in accordance with Article 16(1) of the said contract for construction works.

③ On December 30, 2014, the management and disposal plan (an agenda item No. 4), which set the interest expense for moving expenses at the special meeting of 20.1 billion won, was resolved (an agenda item). Although the lending limit was increased under the monetary loan agreement of this case, since the interest rate of moving expenses to be paid by the association is lower than the initial estimate, so the interest rate of moving expenses to be paid by the association does not exceed 20.1 billion won, there was no increase in the burden on the association members.

2) Unreasonable sentencing

In light of the various sentencing conditions of this case, the sentence of a fine of KRW 700,000,000 imposed by the court below against the defendant is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts and misapprehension of legal principles

With respect to the violation of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, in light of the legislative intent of the provisions on the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, it is reasonable to see that ① the partnership and the subcommittee related to the construction cost-related contract with the Si/Gun/Gu and the non-indicted company 2, ② the proposal for the final negotiation and the proposal for the final negotiation with the cooperative regarding the above contract, ② all documents sent from the cooperative to the non-indicted 2 and the non-indicted 2, ④ the contents of the above contract negotiation and the final report with the CM service company and the non-indicted 2, ⑤ all materials on the method of selecting the CM service company constituted “documents related to the implementation of the maintenance and improvement project” as stipulated in Article 86(6) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. Nevertheless, the court below erred by misapprehending the facts

2) Unreasonable sentencing

In light of the contents of the Defendant’s crime and the attitude after the commission of the crime, the sentence of the lower court is too uneasible and unreasonable.

2. Determination

A. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

1) As to the failure to comply with the request for perusal and reproduction of the CM service agreement

A) Summary of this part of the facts charged

From the early October 2014, the Defendant was elected as the president of the instant association on his behalf, and on April 2, 2015, the Defendant was currently selected as the president of the instant association.

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, a meeting of a partnership and a meeting of representatives of a board of directors and a meeting of representatives of a partnership, a management and disposal plan, a public document on the implementation of the relevant rearrangement project, a monthly deposit and withdrawal of funds, a detailed statement on the modification of the contract with the service company, matters on the modification of the rearrangement project cost, a list of association members, etc., the executive officers of the partnership shall comply with the request within 15 days. Nonindicted 1, a member of the partnership, requested perusal or reproduction of the CM service contract on December 4, 2014, the defendant did not comply with

B) The judgment of the court below

The court below adopted the evidence as evidence and found the defendant guilty of this part of the facts charged.

C) Determination of the immediate deliberation

The establishment of facts constituting a crime in a criminal trial ought to be based on strict evidence with probative value, which leads a judge to have a reasonable doubt. Therefore, in a case where the prosecutor’s proof does not sufficiently reach the extent that such conviction may be led, it should be determined in the interests of the defendant even if there is suspicion of guilt (Supreme Court Decision 2010Do1487 Decided April 28, 201).

In light of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, i.e., ① Nonindicted 3, an employee of the instant association, stated that the court below received a copy of the CM service contract from Nonindicted 1, upon Nonindicted 1’s request for perusal and reproduction at the court below, ② Nonindicted 1 received several books and materials from Nonindicted 3, as well as Nonindicted 3’s warehouse after one week after the request for perusal and reproduction at the court below, and then received them from Nonindicted 3. Of them, it did not memory whether the CM service contract was included, but later stated to the effect that the same was dried. ③ The original CM service contract was kept by the association, and Nonindicted 1 was highly likely to have received it from the association. ④ Even if the remaining evidence submitted by the prosecutor was examined, it cannot be readily concluded that the Defendant failed to comply with the request for perusal and reproduction of the CM service contract, including Nonindicted 1’s materials, and there was no possibility that the CM service contract was included in the CM service contract.

Therefore, since this part of the facts charged constitutes a case where there is no proof of crime, the court below's judgment that found the defendant guilty should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act, which affected the conclusion of the judgment.

2) As to the conclusion of a contract to become a partner without a resolution of the general meeting

The Defendant asserted the same purport in the lower court, and comprehensively based on the evidence duly admitted and examined, the lower court found the Defendant guilty of this part of the facts charged on the ground that the instant monetary loan agreement constitutes a contract to become a partner’s burden, and thus, constitutes a matter to be resolved at a general meeting.

In light of the circumstances acknowledged by the lower court and the following additional circumstances admitted by the evidence, the lower court’s rejection of the Defendant’s assertion and finding the Defendant guilty of this part of the charges is justifiable on the basis of such circumstances, and there is no error as alleged by the Defendant.

A) On December 30, 2014, the agenda item “the borrowing limit is within the scope of the relocation expenses and project expenses (total amount of KRW 425.6 billion) of the management disposition plan,” and the method of borrowing the loan includes “the borrowing method is a loan from a domestic commercial bank (including the second financial right), a contractor, a joint and several surety, and the repayment method is “the repayment method is to be repaid with the partner’s charges and the proceeds for sale.” However, on the above agenda item, the total project expenses (the borrowed amount of KRW 425.6 billion, which is the limit of the above agenda item) are the borrowings of the entire project expenses (the total project expenses of the association in this case under the management disposition plan) and does not include the approximate size of the actual loan, interest expenses, and the method of repayment. Therefore, it cannot be deemed that there was a resolution at the general meeting regarding the conclusion of the instant monetary loan contract.

B) At the ordinary general meeting on April 2, 2015, in addition to the agenda resolved at the extraordinary general meeting on December 30, 2014, the said general meeting passed a resolution on the loan interest rate, loan period plus the “loan of project funds (funds) and the method, interest rate, and method of repayment.” However, even according to this, it is difficult to anticipate the purpose and content of the contract with respect to the loan of money that is still made after the association, and the degree of the burden to be borne by the union members. Moreover, the “resolution by the general meeting” under Article 85 subparag. 5 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents means a prior resolution in principle (see, e.g., Supreme Court Decisions 2009Do14296, Jun. 24, 2010; 2010Do13848, Mar. 29, 2012).

C) Article 15 of the Contract for Construction Works decided at the extraordinary general meeting on December 30, 2014 provides, “The basic relocation allowance shall be differentiated depending on the appraised value, and the total amount of KRW 117 billion borrowed directly by the borrower as the borrower within the limit of the loan ratio of the lending financial institution,” Article 16 of the Contract for Construction Works, which was decided at the extraordinary general meeting on December 30, 2014, provides, “The interest cost to be borne by the association of this case may increase the lending amount of KRW 53 billion with interest-free loan of this case and KRW 150 billion with interest-free loan of this case may be leased to the association of this case,” and Article 16 of the Act provides, “The basic relocation allowance shall be paid differently according to the appraised value and the loan amount of the lending financial institution shall be limited to the limit of KRW 1

In the end, the defendant's assertion of mistake and misapprehension of legal principles is without merit.

B. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

In light of the records, a thorough examination of the evidence duly adopted and examined by the court below in light of the court below's determination of evidence, the evidence of this case alone cannot be deemed to fall under "documents related to the implementation of maintenance projects" as provided by Article 86 (6) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and this part of the facts charged is just and acceptable, and since no new evidence corresponding to the facts charged was submitted in the trial, there is no error of law that affected the conclusion of the judgment by misunderstanding facts or misunderstanding legal principles as pointed out by the prosecutor of the court below. Accordingly, the prosecutor's assertion of mistake of facts and misapprehension of legal principles is without merit.

3. Conclusion

Therefore, the court below rendered a single sentence by treating the violation of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents as a violation of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and the violation of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and the concurrent crimes provided for in the former part of Article 37 of the Criminal Act with respect to the remaining guilty part of the judgment below which is acquitted on the defendant. As such, the part of the judgment of the court below which acquitted the defendant as to the violation of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents as to the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and the violation of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents as to the violation of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and the violation of the Act on the Improvement of Urban Areas

The summary of the facts charged and the evidence against the defendant recognized by this court is as stated in each corresponding column of the judgment below, except for deletion of "written request for perusal and reproduction of disclosed data" in the part of the facts charged of the judgment below and the summary of the evidence of the judgment below. Thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 85 subparagraph 5 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and Article 24 (3) 5 of the same Act.

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

It appears that there is no material to regard that there was substantial damage to the union in relation to the crime, the defendant decided to increase the basic relocation expenses, and dealt with the demands of a considerable number of union members passively and after inquiring of the law office, etc. through the board of representatives, etc., and there is no record of criminal punishment before the crime of this case is committed, and all other circumstances, including the circumstances and nature of the crime of this case, the age, career, personality and conduct of the defendant, and circumstances after the crime, etc., which are the conditions of sentencing as shown in the records and arguments

1. Summary of this part of the facts charged

From the early October 2014, the Defendant was elected as the president of the instant association on his behalf, and on April 2, 2015, the Defendant was currently selected as the president of the instant association.

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 meeting of a union and a meeting of representatives and a meeting of representatives of a union, 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 union members, etc., the executive officers of the union shall comply with the request within 15 days. On December 4, 2014, Nonindicted Party 1, a member of the union, requested perusal or reproduction of the documents and materials related to the implementation of the rearrangement project. ① The defendant, on December 4, 2014, failed to comply with the request of the association and a subcommittee related to the construction cost and a subcommittee related to the construction cost with the non-indicted company and the non-indicted company 2, a final negotiation proposal at the union and the final negotiation proposal of the non-indicted company 2 and the service company.

2. Determination

Of the facts charged, ① through ① and ② the data on the method of selecting service providers and CM service providers are not subject to perusal or reproduction, and thus, it constitutes a case where there is no proof of crime as stated in the above 2.A.1). As such, it constitutes a case where there is no proof of crime as to the CM service contract, and thus, the Defendant is acquitted in accordance with Article 325 of the Criminal Procedure Act and the summary of the judgment against the Defendant is announced in accordance with Article 58(2) of the Criminal Act.

Justices Kim Jae-ok (Presiding Justice)