[1] Whether Article 86 subparagraph 6 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, which stipulates the duty to immediately respond to the request for inspection and copying of documents and related materials related to the implementation of improvement projects, and which punishs the act in violation, violates the principle of clarity of the principle of no punishment without

[2] Whether “data related to the minutes” under Article 81(1)3 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents includes a list of participants and a written resolution (affirmative)

[1] Article 12(1) of the Constitution, Article 1(1) of the Criminal Act, Article 81(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 9729, May 27, 2009); Article 86 subparag. 6 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 11293, Feb. 1, 2012) / [2] Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Article 81(1)3 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 9729, May 27, 2009); Article 86 subparag. 6 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents; Article 22(1) of the Enforcement Rule of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

[1] Constitutional Court en banc Order 2009Hun-Ba90 Decided April 28, 201 (HunGong175, 702)

Defendant

Defendant

Busan District Court Decision 2010No267, 844 decided July 2, 2010

The appeal is dismissed.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 81(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”) provides that the following documents and related materials shall be disclosed in parallel with the Internet in order for members, owners of land, etc., or tenants to know about the implementation of a rearrangement project, and that they shall immediately comply with such request at the request of members, owners of land, etc., and subparagraph 3 of Article 86 provides for the meeting minutes of a promotion committee, resident general meeting, general meeting of cooperatives, general meeting of associations, and meeting of representatives of associations and the meeting of representatives of associations, and Article 81(1)6 provides that the documents and materials related to the implementation of a rearrangement project shall not be disclosed concurrently by the Internet and other means or shall be punished by imprisonment for not more than one year or by a fine not exceeding 10 million won, with respect to the chairperson of a promotion committee or its executives who do not comply with the request for inspection

Comprehensively taking account of the legislative purport of Articles 81(1) and 86 subparag. 6 of the Urban Improvement Act and the entire relevant legal provisions, the scope of the perusal and copying can be specified. The chairperson of the promotion committee, upon receipt of a request for the perusal and copying of a member, may immediately allow the member to peruse or copy the requested documents and relevant materials at the site, unless there is any special reason not to comply therewith (see Constitutional Court en banc Order 2009Hun-Ba90, Apr. 28, 201).

Therefore, the argument in the grounds of appeal that violates the principle of clarity in the principle of no punishment without law is not acceptable, since it is unclear that the scope of materials to comply with the request for perusal and copying in Article 81 (1) of the Urban Improvement Act is within a certain range of time interval.

2. Regarding ground of appeal No. 2

Whether a certain act constitutes a legitimate act that does not contravene the social norms and thus, should be determined on an individual basis by taking into account the following specific circumstances: (i) legitimacy of the motive or purpose of the act; (ii) reasonableness of the means or method of the act; (iii) balance between the protected interests and the infringed interests; (iv) urgency; and (v) supplementary nature that there is no other means or method than the act (see Supreme Court Decisions 2002Do5077, Dec. 26, 2002; 2006Do9307, Mar. 29, 2007, etc.).

According to the reasoning of the judgment below and the records, the facts charged as to the rejection of the perusal and copy of the materials as of April 11, 2008 were that "the defendant did not comply with the request from the non-indicted member, etc. for the perusal and copy of the relevant materials from April 11, 2008 to April 17, 2008, on the ground that the materials are too large to be perused even after receiving a request for the perusal and copy from the non-indicted member, etc.," but the court of first instance changed the indictment to limit the contents of the materials requested for perusal and copy as above in Article 81 subparagraph 3, 6, and 7 of the Urban Improvement Act such as the promotion committee, the minutes of the resident general meeting, the public documents on the implementation of the rearrangement project, the accounting report, etc. The court below presumed that the defendant, the chairperson of the promotion committee, as the defendant, was obligated to comply immediately in addition to disclosing the above materials through the Internet, etc., and rejected the defendant's assertion of mistake and misapprehension of legal principles on the grounds.

In light of the above legal principles, the above decision of the court below is just, and there is no error in the misapprehension of legal principles as alleged in the ground of appeal, since the defendant's refusal of a request for inspection or copying is a legitimate act that does not violate the social rules and thus, it can be deemed that the defendant's rejection of the request includes the purport of rejecting the defendant's assertion that would be detrimental to the purport that the illegality should be avoided.

The precedents cited in the grounds of appeal are different from the case in question, and it is not appropriate to invoke the case in this case.

3. As to the third ground for appeal

A penal provision shall be strictly interpreted and applied in accordance with the language and text, and shall not be excessively expanded or analogically interpreted in the direction unfavorable to the defendant. However, in the interpretation of a penal provision, a systematic and logical interpretation method that clearly expresses the logical meaning of the provision in accordance with the systematic relationship that takes into account the legislative purpose and purpose of the provision within the meaning of the possible language and text is for the interpretation of the provision most accessible to the essential contents of the provision, and in conformity with the principle of no punishment without law (see, e.g., Supreme Court Decisions 2002Do2363, Jan. 10, 2003; 2007Do2162, Jun. 14, 2007).

However, Articles 81(1) and 86 subparag. 6 are newly established under the Urban Improvement Act amended by Act No. 8785, Dec. 21, 2007; the main text of Article 81(1) of the Urban Improvement Act provides that “documents and related materials falling under any of the following subparagraphs” and minutes under Article 81(3) of the same Act; in order to determine whether the minutes are genuinely prepared; whether the quorum and quorum are met; and whether the decision-making contents of the members are properly reflected, other than the minutes, it is necessary to verify the list and written resolution in addition to the minutes; therefore, it is necessary to view the list of members and written resolution as related materials; in light of Article 22(1) of the Enforcement Rule of the Urban Improvement Act amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 265, Jul. 16, 2010, the remaining portion of the members’ list and personal information should be disclosed to the public pursuant to Article 81(3) of the Act.

In the same purport, the court below affirmed the judgment of the court of first instance which found the defendant guilty of each part of the charges that the defendant refused a request for a copy of the attendance list and written resolution as of November 25, 2008 and December 1, 2008, and there is no violation of law such as misunderstanding of the interpretation of Article 81(1) of the Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents and the legal principles as to the principle of no punishment without law, as alleged in the

4. Conclusion

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

Justices Lee In-bok (Presiding Justice)