[1] Whether the "chairperson or an officer of the promotion committee" under 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 includes "Liquidators" (negative)

[2] The case holding that the court below's judgment which found the defendant guilty is erroneous in the misapprehension of legal principles in a case where the defendant was prosecuted for violating the old Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents since he did not disclose documents and materials related to the implementation

[1] The "Chairperson of the Promotion Committee", who is one of the criminal offenders of Article 86 subparagraph 6 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9729 of May 27, 2009; hereinafter the "former Do Government Act"), means the chairperson of the Promotion Committee established with approval of the head of the Si/Gun after obtaining consent of the majority of the owners of the land, etc. to establish the Promotion Committee pursuant to Articles 13 (2) and 15 (1) of the former Do Government Act. The "other executive officers of the Association" refer to one head, director, and auditor appointed through a resolution of the general meeting of the Promotion Committee of the Cooperatives for the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9729 of May 27, 2009; hereinafter the "former Do Government Act") means an institution that performs liquidation affairs of the Promotion Committee after dissolution pursuant to the provisions of Article 27 of the former Do Government Act, and thus interpreting the penal provision to the defendant is excessively unreasonable.

[2] In a case where the Defendant, who is a liquidator of the Housing Redevelopment Cooperatives, was indicted for violating the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9729 of May 27, 2009; hereinafter “former Act”), on the ground that he did not disclose the documents and materials related to the implementation of a rearrangement project even though he was requested to the members to disclose the documents and materials to the public, the case holding that the lower court erred by misapprehending the legal principles on the ground that the Defendant constitutes an “chairperson of the Promotion Committee or an executive of the Promotion Committee” as stipulated in Articles 86 subparag. 6 and 81(1)

[1] Article 12(1) of the Constitution, Article 1(1) of the Criminal Act, Article 13(2), Article 15(1), Article 21, Article 24(3)8, Article 27, 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 (amended by Act No. 9729 of May 27, 2009) / [2] 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 (amended by Act No. 9729 of May 27, 2009)

Defendant

Defendant

Law Firm Asian, Attorney Kim Jong-il

Seoul Northern District Court Decision 2010No1325 decided November 23, 2010

The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.

The grounds of appeal are examined.

The interpretation of a penal provision shall be strict, and the interpretation of a penal provision in the direction unfavorable to the defendant is not permitted as it is against the principle of no punishment without the law. Such interpretation of a penal provision is also applied in a case where the contents of the administrative law that is subject to the penal provision are contents (see Supreme Court en banc Decision 90Do1516, Nov. 27, 1990; Supreme Court Decision 2006Do4582, Jun. 29, 2007, etc.).

Article 86 subparagraph 6 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9729 of May 27, 2009; hereinafter “former Do Act”) provides that the documents and materials related to the implementation of a rearrangement project shall not be disclosed in parallel with the Internet or by any other means, or the chairperson of a promotion committee or an executive officer of a partnership who fails to comply with the request of a member or a landowner, such as land, shall be punished, in violation of Article 81 (1) of the same Act. Meanwhile, Article 81 (1) of the former Do Act provides that the chairperson of a promotion committee or a project implementer (in cases of a partnership, the executive officer of a partnership) shall also disclose the documents and materials referred to in each subparagraph of the same paragraph in parallel with the Internet so that the owner of a member or a landowner, etc. can be identified, and that he/she shall immediately comply with such request.

However, the "Chairperson of the Promotion Committee", one of the main agents of the crime of violating Article 86 subparagraph 6 of the former Do Government Act, means the chairperson of the Promotion Committee for the Establishment of a Cooperatives with the consent of a majority of the owners of the land, etc. in order to establish a Cooperatives pursuant to Articles 13 (2) and 15 (1) of the former Do Government Act, and after obtaining the consent of a majority of the owners of the land, etc., the chairperson of the Promotion Committee for the Establishment of Cooperatives with the approval of the head of the Si/Gun. The "executive of the Cooperatives" means one head, director, and auditor appointed by the resolution of the general meeting of the Cooperatives for the Cooperatives pursuant to Articles 21 and 24 (3) 8 of the former Do Government Act. As such, the interpretation of the "Liquidators", who are the agencies executing liquidation affairs of the Associations after being dissolved pursuant to the provisions of the Civil Act applicable mutatis mutandis by Article 27 of the former Do Government Act, constitutes an "chairperson or executive of the Promotion Committee" as an excessive interpretation of penal punishment in the direction to the defendant.

Nevertheless, the court below determined that the defendant, a liquidator of the non-indicted redevelopment cooperative, falls under the "executive of the Promotion Committee Chairperson or the Cooperative" as provided by Articles 86 subparagraph 6 and 81 (1) of the former Do governor Act and found him guilty of the facts charged in this case. Thus, the court below erred by misapprehending the legal principles on the interpretation of Articles 86 subparagraph 6 and 81 (1) of the former Do governor Act, which affected the conclusion of the judgment.

Therefore, without examining the remaining grounds of appeal, 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 Ahn Dai-hee (Presiding Justice)