The meaning of "the status to be supplied with a house under the provisions of Article 32" that prohibits transfer and takeover under Article 39 (1) 1 of the former Housing Act and the requirements for recognition of such status.

Article 39(1)1 of the former Housing Act (amended by Act No. 9405, Feb. 3, 2009; hereinafter the same) prohibits transfer or acquisition of the status to be supplied with a house pursuant to Article 32 of the same Act. Article 32 of the same Act provides for the methods and procedures for establishment of a housing association established by multiple constituent members to acquire a house, the preferential supply of a house to members of a housing association, such as the qualification standards for constituent members, and the preferential supply of a house to them. Article 39(1)2, 3, and 4 of the former Housing Act and Article 43(1)1 of the Enforcement Decree of the Housing Act provide for the supply of a house to members of the housing association; Article 39(1)1 of the former Housing Act provides that all of the certificates that can be supplied with a house shall be construed as “the status to be lawfully provided with a house” under Article 39(1)1 of the former Housing Act and its equivalent public document or other public trust documents; Article 39(1)39(2)1)1) of the former Housing Act provides that the status of the housing can be construed as valid.

Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Articles 32, 39(1)1, 2, 39(2), and 96 subparag. 1 of the former Housing Act (Amended by Act No. 9405, Feb. 3, 2009); Article 43(1)1 and 2 of the Enforcement Decree of the Housing Act; Article 43(1)2 of the Enforcement Decree of the Housing Act

Defendant

Prosecutor

Attorney White-Ba

Seoul Central District Court Decision 2011No2943 Decided November 3, 2011

The appeal is dismissed.

The grounds of appeal are examined.

Article 96 Subparag. 1 of the former Housing Act (amended by Act No. 9405 of Feb. 3, 2009; hereinafter the same) provides that a person who violates Article 39(1) of the same Act shall be punished by imprisonment with prison labor for not more than three years or by a fine not exceeding 30 million won. Article 39(1) of the same Act provides that “any person shall not transfer or take over, or arrange for, any of the following certificates or positions to acquire, a house constructed and supplied under this Act or to have another person acquire, a house shall not be supplied under the provisions of Article 32, and Article 39(1)1 provides that “the status of a person who can be supplied with a house under the provisions of Article 69, a certificate of occupants’ savings under the provisions of Article 75, and Article 75(1)3 provides that “any other certificate or status that can be supplied with a house under the provisions of Article 75, and Article 49(1)1 of the Enforcement Decree of the Housing Act shall be provided with the following certificate or certificate of relocation measures.”

Meanwhile, Article 39(2) of the former Housing Act provides that the Minister of Land, Transport and Maritime Affairs or a project undertaker may invalidate the status of a person who transfers or acquires a deed or status in violation of Article 39(1) of the same Act, or revoke a housing supply contract already concluded. Article 32 of the former Housing Act provides that where a housing association is to be established, altered, or dissolved, a housing association shall obtain authorization from the head of the competent Si/Gun/Gu, and the housing association may preferentially supply housing to its members, and necessary matters such as the method and procedure for the establishment of a housing association, the criteria for qualification for its members, etc

As above, Article 39(1)1 of the former Housing Act prohibits transfer and acquisition of the status to be supplied with a house under Article 32 of the same Act. Article 32 of the same Act provides for the methods and procedures for establishment of a housing association established by multiple constituent members to acquire a house, the qualification standards for its constituent members, and the preferential supply of a house to its members. Article 39(1)2, 3, and 4 of the former Housing Act and Article 43(1)1 of the Enforcement Decree of the Housing Act provide for the supply of a house to the members of a housing association, such as the preferential supply of a house to its members. In light of the fact that the term “certificate which can be supplied with a house” under Article 39(1)1 of the former Housing Act and Article 39(1)1 of the former Enforcement Decree of the Housing Act, it is reasonable to view that “the status to be supplied with a house” under Article 39(2) of the former Housing Act has the same effect corresponding thereto, and that the term “the status to be provided with a housing association’s position becomes invalid under the principle of penal provision.”

In the same purport, the court below is just in maintaining the judgment of the court of first instance that acquitted the charged facts of this case on the grounds as stated in its reasoning, and there is no error of law by misapprehending the legal principles as to the status of supplying housing under Article 39 (1) 1 of the former Housing Act, as otherwise alleged in the

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

Justices Kim Shin (Presiding Justice)