[1] Whether a contract within one fiscal year is also included in "a contract that becomes a partner's burden in addition to the matters stipulated in the budget," which is stipulated in Article 24 (3) 5 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (affirmative)

[2] The case holding that, even if the president of a reconstruction association, after the enforcement of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, entered into a bathing purchase contract without a general meeting resolution, if it entered into the above contract through a resolution of the board of representatives pursuant to the resolution of the inaugural general meeting held prior to the enactment of the above Act, it is legitimate pursuant to Article 3 of the Addenda of the above Act (amended by December 30, 2002), it does not fall under Article

[3] In a case where a contractor is selected by the resolution of the general meeting of the association before the implementation of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, whether it should be followed again

[1] Article 24(3)5 of the Act on the Improvement of Urban and Residential Environments provides that “a contract that becomes a partner, other than the matters stipulated in the budget, shall be subject to the resolution of the general meeting.” If a contract that becomes a partner’s burden, other than the matters stipulated in the budget, is limited to one fiscal year, and the validity of the debt is limited to one fiscal year, and the repayment of the debt is completed within the fiscal year, it constitutes

[2] The case holding that a purchase contract for bathings concluded by a reconstruction association under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents requires a general meeting resolution as "a contract that imposes a burden on members other than the matters stipulated in the budget" under Article 24 (3) 5 of the same Act, but if the general meeting was delegated to the meeting of representatives and duly passed a resolution on the matters related thereto before the enforcement of the above Act, and if the head of the association entered into the said purchase contract after the enforcement of the above Act in accordance with the resolution of the board of representatives, the above purchase contract shall be deemed to have been promoted through a legitimate resolution of the general meeting pursuant to Article 3 of the Addenda of the same Act (amended by December 30, 202) and therefore, the act of the head of the association who entered into the said purchase contract

[3] A housing reconstruction project association under Articles 11, 24, and 25 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents due to the implementation of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents on July 1, 2003 shall, in principle, select a constructor or a registered business operator through competitive bidding following the resolution of the general meeting after obtaining authorization for the implementation of the project. exceptionally, a housing reconstruction project association which has obtained authorization for the establishment of a housing reconstruction project under Article 7 of the Addenda of the same Act with the consent of at least 1/2 of the owners of the land, etc. selected a contractor with the consent of at least 1/2 of the owners of the land, etc. already concluded a construction contract or a housing reconstruction project with the consent of at least 1/2 of the owners of the land, etc. selected a contractor within two months after the enforcement of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. Therefore, even if a specific constructor was selected as a contractor by the resolution of the general meeting prior to the implementation of the Act, the above procedure becomes invalid.

[1] Article 24 (3) 5 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents / [2] Article 85 subparagraph 5 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents / [3] Article 11, Article 24 (3) 6 and Article 25 (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents / [3] Article 7 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 2 of the Addenda to the Enforcement Rule of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents ( July 1, 2003

Defendant

Prosecutor

Law Firm Squa Law Firm, Attorneys Song Han-sop et al.

Seoul High Court Decision 2005No1265 delivered on October 14, 2005

The part of the judgment below on the violation of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents due to the execution contract is reversed, and that part of the case is remanded to the Seoul High Court.

We examine the grounds of appeal.

1. Points violating the Act on the Maintenance and Improvement of Urban Areas;

A. As to a contract for the purchase of bath bath

(1) The court below held that the term "contract that will become a partner" under Article 24 (3) 5 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 6852, Dec. 30, 2002; hereinafter "the Urban Improvement Act") means a contract that continues over one fiscal year of the union, and that the effect of the obligation is limited to that fiscal year and the repayment of obligation is completed within that fiscal year, if the obligation is performed within that fiscal year, it is not necessary to obtain a resolution of the general meeting. Since the obligation of the union under the bathing purchase contract is completed within 2003 fiscal year, the bathing purchase contract does not constitute "a contract that will become a partner's liability," and even if the bathing purchase contract is concluded after the implementation of the Urban Improvement Act, the defendant's arbitrary execution of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents does not constitute a new resolution of the general meeting's execution of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, and thus, it does not require a resolution of the general meeting.

(2) If “other than those stipulated in the budget, a contract that becomes a partner’s burden,” the validity of the contract is limited to that fiscal year, and even if the repayment of the debt is completed within that fiscal year, it shall be deemed that the agreement constitutes a resolution by the general meeting stipulated in Article 24(3)5 of the Urban Improvement Act. According to the facts acknowledged by the court below, it can be known that the contract for bathing purchase is a contract that is not stipulated in the budget but becomes a partner’s burden. Thus, the contract for bathing purchase constitutes a resolution by the general meeting stipulated in Article 24(3)5 of the Urban Improvement Act.

However, Article 3 of the Addenda to the Urban Improvement Act provides that "a disposition, procedure, and other acts conducted under the Housing Construction Promotion Act at the time of entry into force of this Act shall be deemed to have been performed under the provisions of the Urban Improvement Act." Thus, as recognized by the court below, the general meeting of the association of this case held prior to the enactment of the Urban Improvement Act concerning "a contract to become a partner or the purchase of buildings deemed necessary for the implementation of the project, other than the matters stipulated in the budget," was duly decided upon by delegation to the board of representatives to implement the Urban Improvement Act (the agenda item No. 8), and if the defendant signs a bath purchase contract after the enforcement of the Urban Improvement Act in accordance with the resolution of the board of representatives of the association of this case held prior to the enforcement of the Urban Improvement Act, it shall be deemed that it

Therefore, the judgment of the court below that the conclusion of the defendant's bathing purchase contract does not violate Article 85 subparagraph 5 of the Urban Improvement Act is justifiable in its conclusion. Therefore, the ground of appeal on this point is without merit.

B. As to a monetary loan agreement

According to the facts acknowledged by the court below, matters concerning "loan, method, interest rate, and method of repayment" at the inaugural general meeting of the association of this case held prior to the enactment of the Urban Improvement Act was legally decided upon by delegation to the board of representatives for implementation (the agenda in subparagraph 8), and thereafter, the defendant entered into a monetary loan contract after the enforcement of the Urban Improvement Act, in accordance with the resolution of the board of representatives of the association of this case held prior to the enforcement of the Urban Improvement Act or the authority implicitly delegated to the defendant at the above inaugural general meeting, so it is reasonable to see that the monetary loan contract

In the same purport, the decision of the court below to the purport that the conclusion of a monetary loan contract by the defendant does not violate Article 85 subparagraph 5 of the Act on the Maintenance of Urban Areas and Dwelling Conditions is just and acceptable, and there is no violation of law as alleged.

In addition, as long as the above judgment of the court below is correct, even if the resolution of the general meeting is required for the portion of the monetary loan contract on the operating expenses of the association and other business expenses, as long as the general meeting of the association of this case confirmed the whole of the monetary loan contract of this case at the general meeting of the association of this case on May 22, 2004, the court below's reasoning that the defendant cannot be deemed to have concluded a monetary loan contract without the general meeting's resolution is merely an additional and family judgment, and thus,

C. As to a provisional construction agreement

(1) As long as it is evident that the Defendant decided to select Samsung C&T as the contractor at the inaugural general meeting of the instant association before the enactment of the Do Government Act, it is merely an execution of the resolution of the inaugural general meeting to conclude a provisional construction contract with Samsung C&T, and it cannot be deemed that the Defendant selected the contractor without the resolution of the general meeting. Therefore, the lower court affirmed the first instance judgment that acquitted the Defendant of this part of the facts charged, on the ground that the execution of a provisional construction contract does not constitute a violation of the

(2) However, we cannot agree with the above judgment of the court below.

The Addenda to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”) separately provides for the transitional provisions of Article 7 on the project implementation method in addition to the general transitional provisions of Article 3 above. According to the Act, a housing reconstruction project partnership shall, in principle, select a constructor or registered business operator through competitive bidding after obtaining authorization for project implementation on July 1, 2003 due to the implementation of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Articles 11, 24(3)6, and 25(2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Article 35 of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents). An association authorized to establish an association with authorization for the establishment of an association with the consent of at least 1/2 of the owners of the land, etc., selected a contractor with the consent of at least 1/2 of the owners of the land, etc. or a housing reconstruction project selected by the head of the Si/Gun within two months after the enforcement date of the Act.

Therefore, even if a specific constructor was selected as a contractor by the resolution of the general meeting in accordance with the previous relevant laws and regulations before the enforcement of the Urban Improvement Act, if it fails to meet the above exceptional recognition requirements after the implementation of the Urban Improvement Act, the decision of the former general meeting to select the contractor becomes null and void, and therefore, it should go through the procedure of selecting the contractor again in accordance with

According to the facts acknowledged by the court below, the association of this case decided to select Samsung C&T as the contractor at its inaugural general meeting before the enactment of the Urban Improvement Act and obtained authorization to establish an association. However, since it is apparent that the execution contract of this case was concluded between Samsung C&T after the enforcement of the Urban Improvement Act, Samsung C&T cannot be recognized as the contractor selected under Article 11 of the Urban Improvement Act pursuant to Article 7 (2) of the Addenda to the Urban Improvement Act (as a result of the record, it can be seen that it refused to accept the report that Samsung C&T was selected as the contractor for the same reason).

Therefore, since the resolution which selected Samsung C&T as contractor at the above inaugural general meeting has no validity, the association of this case should have selected the contractor again by means of competitive bidding after receiving an authorization for project implementation under the Urban Improvement Act and undergoing the resolution of a new general meeting, but the defendant concluded a provisional construction contract with Samsung C&T without going through such procedures and the resolution of the general meeting. Thus, the conclusion of a provisional construction contract by the defendant constitutes a case where an executive of the association without going through the resolution of the general meeting.

Nevertheless, the court below maintained the judgment of the court of first instance which acquitted of this part of the facts charged, is an unlawful act that affected the conclusion of the judgment by misunderstanding the legal principles as to the resolution of the general meeting under Article 85 subparagraph 5 of the Urban Improvement Act. Therefore, the grounds for appeal assigning this error

2. As to occupational breach of trust

Examining the reasoning of the judgment below in light of the records, it is difficult to conclude that value-added tax is included in the value-added tax on the supply of construction services among the business expenses under the equity proposal method submitted by the prosecutor, based on the circumstances in its holding. Rather, the value-added tax among the business expenses in the equity method is merely the value-added tax reported and paid by the association of this case as a result of the supply of goods, which is reconstruction, and does not include the value-added tax on the provision of construction services, and it cannot be deemed that there was an agreement between the association of this case and Samsung Heavy Industries to bear the value-added tax on the provision of the above construction services, and it is reasonable to reject the prosecutor's assertion and to maintain the judgment of the court of first instance that acquitted the defendant. There is no error in the misapprehension of legal principles as otherwise alleged.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the violation of the Act on the Maintenance and Improvement of Urban Areas due to Construction Contract shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination, and the prosecutor's remaining appeal shall be dismissed. It is so decided as per Disposition by the assent

Justices Yang Sung-tae (Presiding Justice)