[1] Whether a corrective order under Article 91 of the former Housing Act should be lawful in order to establish a crime of violation of Article 98 (11) of the former Housing Act (affirmative)

[2] The meaning of "persons other than occupants, etc. of multi-family housing who have an interest in the management of the relevant multi-family housing" and "profit protected by law" under Article 51 (3) of the former Enforcement Decree of the Housing Act

[3] In a case where the competent administrative agency ordered the council of occupants' representatives to order a corrective order prohibiting the opening of the market within the apartment complex from sunrise to sunrise for the reason that it infringes on the rights of the shop occupants within the apartment complex, the case denying the establishment of a violation of Article 98 subparag. 11 of the former Housing Act on the ground that the said corrective order is not lawful

[1] In order to punish a person under Article 98 subparagraph 11 of the former Housing Act on the ground that an administrative agency violated a corrective order under Article 91 of the former Housing Act (amended by Act No. 8863 of Feb. 29, 2008), the corrective order must be lawful, and if the corrective order is deemed unlawful, the violation of Article 98 subparagraph 11 of the same Act is not established.

[2] Comprehensively taking into account the language, text, legislative intent, etc. of Article 51(3) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 19356 of Feb. 24, 2006), the term “persons other than occupants, etc. of a multi-family housing, who have an interest in the management of the relevant multi-family housing” refers to persons other than occupants, etc. of a multi-family housing, who have a legal or contractual right or legal interest in the management of the relevant multi-family housing. The term “profit protected by law” refers to a case where a person has a direct and specific interest protected by the housing-related laws and regulations,

[3] The case denying the establishment of a violation of Article 98 subparagraph 11 of the former Housing Act (amended by Act No. 8863 of Feb. 29, 2008) on the ground that, in a case where the competent administrative agency ordered a corrective order to prohibit the opening of the market within the apartment complex from sunrise to sunrise, since it ordered the council of occupants' representatives to order the corrective order to prohibit the opening of the market within the complex until sunrise, it cannot be deemed that the management authority set the guidelines for the consent of the management authority for the activities of occupants, etc. cannot be deemed that it granted the right to demand the prohibition of opening the market from sunrise to sunrise, and that the interests of the shop occupants in the apartment complex related to the opening of the market within the apartment complex are merely a factual and economic interest, and it is not a legally protected interest.

[1] Articles 91 and 98 subparag. 11 of the former Housing Act (amended by Act No. 8863 of Feb. 29, 2008) / [2] Articles 51(1) and (3) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 19356 of Feb. 24, 2006), Article 43 of the Housing Act / [3] Articles 51(1) and (3) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 19356 of Feb. 24, 2006), Articles 91 and 98 subparag. 11 of the former Housing Act (amended by Act No. 8863 of Feb. 29, 2008)

[1] Supreme Court Decision 2007Do3918 Decided July 13, 2007

Defendant

Defendant

Incheon District Court Decision 2005No2142 Decided January 19, 2006

The judgment below is reversed, and the case is remanded to the Incheon District Court Panel Division.

Judgment ex officio is made.

In case where a person who received a corrective order from an administrative agency pursuant to Article 91 of the former Housing Act (amended by Act No. 8863 of Feb. 29, 2008; hereinafter referred to as the "Act") violates it, the corrective order must be lawful in order to punish him/her pursuant to Article 98 subparagraph 11 of the Act, and as long as the corrective order is deemed illegal, the violation of Article 98 subparagraph 11 of the Act cannot be established (see Supreme Court Decision 2007Do3918, Jul. 13, 2007, etc.).

According to the reasoning of the judgment below, the court below determined that Article 51 (3) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 19356, Feb. 24, 2006; hereinafter the "Enforcement Decree") provides that "when the council of occupants' representatives makes a resolution on the matters under paragraph (1), it shall not infringe on the rights and interests of the tenant, etc. other than the tenant, etc. of the apartment house, and Article 41 (1) 1 (a) of the Enforcement Decree of the Rules on the Management of ○○ apartment Houses of this case enacted on the basis of Article 51 (1) 9 of the Enforcement Decree of the Rules on the Management of ○○ apartment Houses of this case (amended by Presidential Decree No. 19356, Feb. 24, 2006) that the tenant, etc. temporarily loads on the parking lot or the road for the purpose of direct trade of agricultural and fishery products and the right and interests of tenant occupants in the apartment complex."

In full view of the language, contents, legislative intent, etc. of Article 51(3) of the Enforcement Decree, the term "persons other than occupants, etc. of the apartment house who have an interest in the management of the apartment house" means persons other than occupants, etc. of the apartment house who have a legal or contractual right or legal interest in the management of the apartment house, and the term "profit protected by the law" in this context refers to a case where a person has a direct and specific interest in the management of the apartment house, and it does not constitute cases where a person has

However, according to the reasoning of the judgment below, Article 41 (1) 1 of the Management Rules of Multi-Family Housing merely provides the criteria for the consent of the management authority to the tenant's acts, and it is not a ground to view that the tenant in a commercial building has the right to demand the tenant's council not to hold the alle market in this case. In addition, the interests of the tenant in the commercial building in relation to the holding of the alle market in this case are factual and economic interests, and it cannot be viewed as a legally protected interest. However, the court below determined that the corrective order in this case is legitimate on different premise. Thus, the court below erred by misapprehending the legal principles on the legality of the corrective order under Article 91 of the Act, which affected the conclusion of the judgment.

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)