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The prosecutor's appeal is dismissed.
Reasons
1. In light of the Supreme Court Decision 2009Do14296 Decided June 24, 2010, the term “resolution of a general meeting” in Articles 24(3)5 and 85 subparag. 5 of the former Act on the Maintenance and Improvement of Urban Areas and Residential Environments (amended by Act No. 14567, Feb. 8, 2017; hereinafter “Act on the Maintenance and Improvement of Urban Areas”) means a prior resolution in principle, and there was a decision of ex post ratification of a service agreement as stated in the facts charged for holding an ordinary meeting in 2017 (hereinafter “instant service agreement”).
Even if the crime of this case was committed retroactively, it cannot be deemed that the crime of this case was committed retroactively.
Therefore, insofar as the instant service contract is obviously “a contract that becomes a partner, other than the matters prescribed by the budget,” as stipulated in Article 24(3)5 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, a resolution of a general meeting related to the conclusion of the said contract may be passed exceptionally.
In light of the legal principles, the lower court acquitted the Defendant of the facts charged, thereby adversely affecting the conclusion of the judgment.
2. Determination
A. The purport of Article 24 (3) 5 of the Act on the Non-Act on the Law of the City and Do provides that “a contract that will become a partner's burden, other than the matters prescribed by the budget,” as a resolution of the general meeting is to ensure that the intent of the members is reflected in matters that directly affect the rights and obligations of the members.
Therefore, if an executive officer of a union entered into a contract to become a partner without prior resolution, it constitutes a crime in violation of Article 85 subparagraph 5 of the Act on the Law of Urban Community.
However, considering the nature of the rearrangement project, it is difficult to make a prior resolution at the general meeting on all the affairs promoted by the partnership. In light of the purpose and content of the contract to be promoted by the general meeting in advance, the degree of the burden to be borne by the union members shall be outlined and decided by the general meeting.