[1] The purport of Article 81(1) and Article 86 subparag. 6 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents to disclose the documents and materials related to the implementation of a rearrangement project and to impose a penal provision on the chairperson of the promotion committee or the executive officers

[2] Whether an acting director of an association selected by the court constitutes an association officer, who is the principal agent of a crime of violation of Article 86 subparagraph 6 and Article 81 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (affirmative)

[1] As prescribed by Articles 81(1) and 86 subparag. 6 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 13508, Sep. 1, 2015); the purport of the Act to disclose documents and materials related to the implementation of a rearrangement project and to impose penal provisions on the promotion committee chairperson or the executives of the association who violated the Act is to ensure transparency and public nature of a rearrangement project and to satisfy the rights of members, etc. to know.

[2] Article 21(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 13508, Sep. 1, 2015; hereinafter “former Act”) provides that the head, directors, and auditors of an association shall be the executives of an association. Article 27 of the same Act provides that the provisions concerning incorporated associations of the Civil Act shall apply mutatis mutandis to an association, except as otherwise provided for in the above Act. Thus, Article 52-2 of the Civil Act applies mutatis mutandis, and the court may appoint an agent of an association’s representative upon a provisional disposition order. However, Article 60-2(1) of the Civil Act provides that “An agent of an association under Article 52-2 shall not be deemed an act that does not belong to the ordinary affairs of a corporation unless otherwise stipulated in the provisional disposition order: (a) an agent of an association appointed by the court under the provisional disposition order shall be deemed an act that falls under the ordinary affairs of a cooperative, such as maintaining and managing the association’s executives’s right to know as before a general meeting.

[1] Articles 81(1) and 86 subparag. 6 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 13508, Sep. 1, 2015) / [2] Articles 21(1), 27, 81(1), and 86 subparag. 6 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 13508, Sep. 1, 2015); Articles 52-2 and 60-2(1) of the Civil Act

[1] Supreme Court en banc Decision 2015Do10976 Decided February 18, 2016 en banc Decision 2015Hun-Ba329 Decided June 30, 2016 (Hun-Gong237, 1105)

Defendant

Defendant

Suwon District Court Decision 2016No5073 decided January 19, 2017

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 81(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 13508, Sep. 1, 2015; hereinafter “former Act”) provides that “The Chairperson of the Promotion Committee or a project implementer (in cases of a cooperative, referring to its executives, and representatives where the owners of a plot of land, etc. independently implement an urban environment improvement project) shall make public the following documents and relevant data within 15 days after the preparation or alteration of the documents and relevant data concerning the implementation of an improvement project, and shall also make them available to the members, owners, or tenants of the plot of land, etc. through the Internet and other methods.” Article 86 Subparag. 6 of the former Act provides that “The documents and data related to the implementation of an improvement project shall not be made public in parallel with the Internet in violation of Article 81(1) or the executives of the Promotion Committee or the executives of the Urban Environment Improvement Committee who do not comply with the request of the owners, etc. of a plot of land, etc. (see Article 2016(6).).

2. Article 21(1) of the former Act provides that one head, directors, and auditors of an association shall be the executives of an association. Article 27 of the same Act provides that the provisions concerning incorporated associations of the Civil Act shall apply mutatis mutandis to an association except as otherwise provided for in the above Act. Thus, Article 52-2 of the Civil Act shall apply mutatis mutandis, and the court may appoint an agent of an association’s officers according to the order of provisional disposition. However, Article 60-2(1) of the Civil Act provides that “An agent of an association under Article 52-2 shall not engage in any conduct that does not belong to the ordinary affairs of a corporation unless otherwise stipulated in the order of provisional disposition: Provided, That this shall not apply where the permission of the court is obtained.” Thus, an agent of an association appointed by the court according to the order of provisional disposition may maintain and manage the association as before, and in principle, have the same authority as the partnership’s officers through a resolution of the general meeting of association to the extent that the association’s officers are handling the ordinary affairs of the association.

3. According to the reasoning of the lower judgment and the evidence duly admitted by the first instance court maintained by the lower court, the Defendant: (a) was an acting person for the head of the association appointed by the court in the case of applying for a provisional disposition of suspending the performance of duties to the head of the housing redevelopment and rearrangement project association in Suwon-si; (b) entered into a construction office and general assembly assistance service contract on February 6, 2015 as part of ordinary business affairs; and (c) the above general assembly assistance service contract is a document belonging to the service company’s selection contract which requires the officers, etc. to be disclosed under Article 81(1)2 of the former Act, but the Defendant did not disclose it within 15 days from the date of the preparation of the said contract. Examining these facts in light of the aforementioned legal principles, the Defendant’s act constitutes a violation of Article 86 subparag. 6 and Article 81(1) of the former Act.

In the same purport, the judgment of the court below that the facts charged in this case are guilty is just, and contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the interpretation of Article 86 subparagraph 6 and Article 81 (1) of the former Act.

4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)