The purport of Article 85 subparagraph 5 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and Article 24 (3) of the same Act shall be subject to a resolution of the general meeting, and penal provisions punishing executive officers in violation

Article 24(3) (see current Article 45(1)) and Article 85 subparag. 5 (see current Article 137 subparag. 6) 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)

Supreme Court Decision 2009Do14296 Decided June 24, 2010 (Gong2010Ha, 1526) Supreme Court Decision 2016Do138 Decided October 27, 2016 (Gong2016Ha, 1859)

Defendant 1 and two others

Defendants

Attorneys Yoon Young-young et al., Counsel for the defendant

Seoul Northern District Court Decision 2018No299 decided August 23, 2018

All appeals are dismissed.

The grounds of appeal are examined.

1. Article 85 Subparag. 5 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 13508, Sept. 1, 2015; hereinafter “former Act”) provides that “executive officers of a cooperative who arbitrarily promote the projects falling under each subparagraph of Article 24(3) without going through a resolution of a general meeting under Article 24 shall be punished.” Article 24(3) of the former Act provides that matters subject to a resolution by a general meeting shall be resolved. As such, the purport of the former Act is to ensure that the former Act requires a resolution of a general meeting regarding certain matters, and the penal provisions that punish the executive officers of a cooperative who violate the Act, is to guarantee the cooperative’s procedural opportunity to participate in the matters that directly affect the rights and obligations of the union members, and to prevent the crossing of executive officers of the cooperative (see, e.g., Supreme Court Decisions 2009Do14296, Jun. 24, 2010; 2016Do138).

2. The lower court convicted the Defendants of the instant facts charged (excluding the part not guilty in the grounds of appeal) on the following grounds.

A. The “additional charges” to be paid by members according to each sales contract concluded with members by the ○○○○ City △△ Complex 2nd Housing Reconstruction and Improvement Project Association (hereinafter “instant association”) constitutes “the details of allocation for each association member of the rearrangement project cost” stipulated in Article 24(3)9 of the former Act as a resolution by the members’ general meeting.

B. Article 24(3) of the former Act separately prescribes the details of allocation for each partner of the rearrangement project cost (No. 9) and the “establishment and amendment of a management and disposal plan under Article 48 (10)” as the matters to be resolved at the general meeting of partners.

C. On January 15, 2012, the instant union passed a resolution on a management and disposition plan that determines the estimated amount of the rearrangement project expenses, the amount and timing of sharing the expenses to be borne by the association members, etc. at the special meeting; and on February 22, 2013, the resolution on the amendment of the said management and disposition plan at the special meeting constitutes a resolution on the “establishment and amendment of the management and disposition plan under Article 48” under Article 24(3)10 of the former Act, and thereby, cannot be said to have passed a resolution on the “amount of allocation by the association members of the rearrangement project cost” under Article 24(3)9 of the same Act.

3. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by exceeding the interpretation of relevant provisions, thereby affecting the conclusion

4. The Defendants’ appeals are without merit and all are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)