Whether the “election of the promotion committee members” under Article 21(4) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents includes not only the election of the promotion committee members, who are general members of the promotion committee, but also the election of the committee members including the chairperson (affirmative); and whether the same applies to the determination of whether the defendant falls under the above provision even if the promotion committee members

Article 21(4) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 14567, Feb. 8, 2017; hereinafter “former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”) provides that “any person shall not provide, display, or promise to provide money, valuables, entertainment, or other property benefits in connection with the election of members of the Promotion Committee, or shall not receive, or consent to the offer of, such benefits, in violation of any of the subparagraphs of Article 21(4).” Article 84-2 Subparag. 3 of the same Act provides that “any person who provides, expresses, or promises to provide, money, valuables, or other property benefits, or who receives, or consents to the offer of, or consent to the offer of, such benefits.” Article 21(4) of the former Act and Article 84-2 Subparag. 3 of the same Act introduced by the amendment of the Act on February 1, 2012.

Article 13(2) of the former Act provides that, where a cooperative intends to be established under the title of “establishment of a cooperative and the composition of a promotion committee,” “at least five members, including the chairperson, and at least the land owner with respect to the operating regulations under Article 15(2).” Article 15(1) provides that, under the title of “organization and operation of a promotion committee,” the promotion committee shall have one chairperson representing the promotion committee and one auditor,” and Article 13(2) provides that, for the fair operation of the promotion committee, the Minister of Land, Infrastructure and Transport shall determine the operating regulations of the promotion committee and publicly notify the promotion committee in the Official Gazette.

Article 15(1) of the Regulations on Operation of the Rearrangement Project Establishment Promotion Committee (amended by Notice of Ministry of Land, Infrastructure and Transport No. 2018-102, Feb. 9, 2018) attached to the Regulations on Operation of the Rearrangement Project Establishment Promotion Committee (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 2018-102, Feb. 9, 2018) states that “the appointment and change of members” as members of the Promotion Committee under the title of “election and change of members,” and Article 17 of the former Act stipulates that “the chairperson shall represent the Promotion Committee and exercise overall control over the affairs of the Promotion Committee, and shall be the chairperson of the Residents’ General Meeting and the Promotion Committee.”

When interpreting the aforementioned provisions in an organic and systematic manner along with the overall structure, purport, and legislative purpose of the Act, it is reasonable to view that the “election of the promotion committee members” under Article 21(4) of the former Act includes not only the election of the promotion committee members, but also the election of the members, including the chairperson, as well as the election of the promotion committee members, as a matter of course. As long as such, it is possible to view that the defendant is in the status of the promotion committee members at the time of election of the chairman of the promotion committee, it is not different in determining whether the defendant falls under the above provisions.

Articles 13(2) (see current Article 31(1)), 15(1) (see current Article 33(1)), 15(2) (see current Article 34(1)), 21(4) (see current Article 132), 84-2 subparag. 3 (see current Article 135 subparag. 2, 141, and 142) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 14567, Feb. 8, 2017);

Defendant

Defendant

Attorney Shin Jae-chul

Busan District Court Decision 2016No615 Decided April 21, 2016

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Article 21(4) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 14567, Feb. 8, 2017; hereinafter “former Act”) provides that “any person shall not provide, manifest an intention or promise to provide, or receive, money, valuables, entertainment, or other property benefits in connection with the election of members of the Promotion Committee; or shall not accept or promise to provide such benefits; and Article 84-2 subparag. 3 of the same Act provides that “any person who provides, expresses an intention or promises to provide, or accepts an intention to provide, money, valuables or other property benefits in violation of any of the subparagraphs of Article 21(4) or who receives or promises to provide such benefits.” Article 21(4) of the former Act and Article 84-2 subparag. 3, 2012, which are introduced by the amendment of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents.”

Article 13(2) of the former Act provides that, where a cooperative intends to be established under the title of “establishment of a cooperative and the composition of a promotion committee,” “at least five members, including the chairperson, and at least the land owner with respect to the operating regulations under Article 15(2).” Article 15(1) provides that, under the title of “organization and operation of a promotion committee,” the promotion committee shall have one chairperson representing the promotion committee and one auditor,” and Article 13(2) provides that, for the fair operation of the promotion committee, the Minister of Land, Infrastructure and Transport shall determine the operating regulations of the promotion committee and publicly notify the promotion committee in the Official Gazette.

Article 15(1) of the Regulations on Operation of the Rearrangement Project Establishment Promotion Committee (amended by Notice of Ministry of Land, Infrastructure and Transport No. 2018-102, Feb. 9, 2018) attached to the Regulations on Operation of the Rearrangement Project Establishment Promotion Committee (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 2018-102, Feb. 9, 2018) stipulates that “the appointment and change of members” as members of the Promotion Committee under the title of “election and change of members,” and Article 17 of the former Act stipulates that “the chairperson shall represent the Promotion Committee and exercise overall control over the affairs of the Promotion Committee, and shall be the chairperson of the Residents’ General Meeting and the Promotion Committee.”

If the above provisions are interpreted organically and systematically along with the overall structure, purport, and legislative purpose of the Act, it is reasonable to view that the “election of the promotion committee members” under Article 21(4) of the former Act includes not only the election of the promotion committee members who are general members but also the election of the members who are executive members, including the chairperson, as well as the election of the promotion committee members, as a matter of course. As such, insofar as it can be seen, it is not different as to whether the defendant is in the status of the promotion committee members at the time of the election of the chairman of the promotion committee, even if the defendant

2. Meanwhile, Articles 21(4) and 84-2 subparag. 3 of the former Act prohibit and punish the act of receiving money and valuables, etc. in relation to the election of members of the Promotion Committee, and do not impose various restrictions on the specific form of the constituent act.

The court below found the defendant guilty on the facts charged of this case on the ground that the above monetary grant act and the election of the chairperson are recognized as a quid pro quo, and the defendant's act can be deemed as seriously damaging the fairness of the election of the members of the promotion committee, and the money and valuables in relation to the election of the members of the promotion committee can be received.

3. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court’s reasoning was partially insufficient, but its conclusion that found the Defendant guilty is acceptable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on interpretation of Articles 21(4) and 84-2 subparag. 3 of the former Act, or by misapprehending the legal doctrine on interpretation of Articles 21(4) and 84-2 subparag. 3 of the former Act, or by

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

Justices Noh Jeong-hee (Presiding Justice)