2016 Height787 Violation of the Act on the Maintenance and Improvement of Urban Areas

A

Park fixed-time (prosecution) and leap-hee (public trial)

Law Firm B

Attorney C, D

December 16, 2016

Defendant shall be punished by a fine of KRW 80,000.

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.

Criminal facts

The defendant is the head of the E-Financial Renewal Promotion Zone, which is a cooperative established under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. The executive officers of a cooperative established under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents shall not arbitrarily implement the projects such as contracts, etc. that will become the partner

Nevertheless, on March 14, 201, the Defendant entered into an OS service contract (service fee of KRW 18450,000) at the office of the instant association located in the Eunpyeong-gu Seoul Metropolitan Government F and second floor on behalf of the instant association on behalf of the instant association, and entered into a contract for the security service of the company at the same place on March 20, 201.

Accordingly, the defendant arbitrarily concluded a contract that will become a partner's burden in addition to the matters set forth in the budget two times in total without the resolution of the general meeting of the association.

Summary of Evidence

1. On November 3, 2015, part of the interrogation protocol of the prosecution as of November 3, 2015 against the defendant

1. The OS consulting contract for the seventh general meeting of cooperatives, and the security service contract for the seventh general meeting of cooperatives;

1. A copy of the articles of incorporation of the association, and the budget of the association from 2010 to 2014;

Application of Statutes

1. Article applicable to criminal facts;

Articles 85 subparag. 5 and 24(3)5 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) (Selection of Fines)

1. Aggravation for concurrent crimes;

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

Judgment on the argument of the defendant and defense counsel

1. Defendant and his defense counsel’s assertion

Each of the instant services contract was concluded before the budget in 2011 was finalized, and the budget and accounting was applied mutatis mutandis in 2010, and was concluded within the scope of the reserve fund set out in the budget in 2010, and concluded within the scope of the expenses for holding the general meeting in 2010, not the “contract that will become a burden on union members, other than the matters set out in the budget.”

2. Determination

Article 54 (3) of the Constitution of the Republic of Korea provides that the government may spend expenses for a certain purpose (i) the maintenance and operation of an institution or facility established by the Constitution or a statute, (ii) the performance of statutory expenditure, and (iii) the continuation of a project already approved by the budget) in accordance with the previous year’s budget when the budget bill is not approved by the local council. Article 131 of the Local Autonomy Act and Article 46 of the Local Finance Act provide that the head of the local government can execute expenses for a certain purpose (i) the maintenance and operation of an institution or facility established by a statute or municipal ordinance, (ii) the performance of expenditure obligations under the law or municipal ordinance, and (iii) the continuation of a project already approved by the budget) in accordance with the previous year’s budget. However, the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents that regulates the housing redevelopment project does not stipulate such quasi-budget system, but the Constitution, the Local Autonomy Act, the Local Finance Act, and the Local Finance Act grants voting rights to the National Assembly and the head of the local government.

Meanwhile, on June 19, 2014, the Defendant presented the basis for "budget and accounting regulations of the Seoul Special Metropolitan City Improvement Project Association, such as the Seoul Special Metropolitan City Improvement Project Association," and the main text of Article 18 (1) of the above budget and accounting regulations provides that "if the relevant year budget is not established before the beginning of the fiscal year due to unavoidable reasons, the association, etc. may execute it in accordance with the previous year's budget." However, the above budget and accounting regulations were enacted at the time of the conclusion of each service contract of this case, and the association of this case was established at the time of the conclusion of each service contract of this case, and the association of this case enacted the budget and accounting regulations of the Housing Improvement Project Association of EF Area, including the same contents as the above budget and accounting regulations, around March 19

In addition, Article 14(2) provides that “The head of a cooperative, etc. shall compile a budget for each fiscal year and finalize it through a resolution of a general meeting within three months from the beginning date of the fiscal year.” The proviso of Article 18(1) provides that “where it is impossible to hold a general meeting within three months from the beginning date of the fiscal year inevitably,” the same provision provides that “where it is impossible to hold a general meeting within three months from the beginning date of the fiscal year,” the same provision provides that “where the budget for the relevant fiscal year is not established before the beginning date of the fiscal year due to unavoidable reasons” may be executed in accordance with the previous year’s budget. However, there is no evidence to deem that the instant union could not hold a general meeting within three months from the beginning date of the fiscal year (from January 1, 2011 to December 31, 2011 according to the articles of association of the association of this case).

Therefore, it cannot be deemed that the budget and accounting of the year 2010 is applied mutatis mutandis to each service contract of this case concluded on March 2011. The argument of the Defendant and the defense counsel is rejected.

Judges Jin Jae-Gyeong