[1] The meaning of "executives of a cooperative" or "partnerships of a cooperative" or "partnerships of a cooperative" under Article 85 subparagraph 5 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents or Article 86 subparagraph 6 of the same Act or where the disposition of approving the establishment of a cooperative cannot be deemed to be null and void from the beginning, and thus the association cannot be established from the beginning, whether the non- formed partnership head, director, or auditor of a cooperative constitutes "executives of the cooperative

[2] In a case where the Defendants, who were executives of a housing redevelopment and rearrangement project association, were indicted for violating the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents because they conspired to select a removal supervisor without a resolution of a general meeting, or failed to disclose data related to the implementation of a rearrangement project, the case holding that the Defendants cannot be the subject of each violation of Article 85 subparag. 5, Article 24 subparag. 5, Article 86 subparag. 6, and Article 81(1) of the same Act since the disposition of approving the establishment of an association against the above association was null and void

[1] [Majority Opinion] (A) In full view of Articles 8(1), 13, 20(1)5, 21(1), and 85 subparag. 5, and Article 86 subparag. 6 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11293, Feb. 1, 2012; hereinafter “former Act”), only the actors stipulated in each provision can be the subject of a violation of Article 85 subparag. 5 of the former Act or a violation of Article 86 subparag. 6 of the former Act. Here, “executive of a cooperative” or “partnership’s partnership’s officers” defined as the subject of a violation of Article 13 of the former Act are the heads of cooperatives, directors, and auditors established by a union that consists of owners of land, etc. to implement a rearrangement project pursuant to Article 21 of the former Act.

(B) According to Article 18 of the former Act, an association consisting of owners of a plot of land, etc. and intended to implement a rearrangement project is established upon registration after meeting the requirements and procedures prescribed by relevant Acts and subordinate statutes, including Articles 13 through 17, and is recognized as an administrative body that implements a rearrangement project within the rearrangement zone under the supervision of the competent administrative agency. Here, the administrative agency’s disposition to authorize the establishment of an association has the nature of a sort of permanent authority disposition granting the status as an administrative body that has the authority to implement a rearrangement project within the rearrangement zone under the supervision of the competent administrative agency. Therefore, where an association consisting of owners of a plot of land, etc. did not obtain a disposition to authorize the establishment in the process of such establishment or even if such approval was granted, where an association cannot be deemed to have been established as an administrative body that has the authority to implement a rearrangement project under Article 13 of the former Act, and the head of such association, director, and auditor cannot be deemed an executive officer

In light of the above legal provisions and legal principles, in a case where a certain association seeking to implement a rearrangement project obtains an authorization to establish the association, and it cannot be deemed that the association under Article 13 of the former Act was established from the beginning because the disposition to authorize the establishment of the association becomes null and void, the person appointed as the president, director, or auditor of the association who did not establish the association does not constitute a violation of Article 85 subparag. 5 of the former Act or an “executive of the association” or an “executive of the association” who is the subject of a violation of Article 86 subparag. 6 of the former Act, and therefore, an act of such an association cannot be punished as a violation of Article 85 subparag. 5 of

[Dissenting Opinion by Justice Shin Young-chul, Justice Ko Young-han, Justice Kim Chang-suk, and Justice Kim Shin] (A) Examining Articles 24(3), 81(1), 84, subparagraph 5 of Article 85, and subparagraph 6 of Article 86 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11293, Feb. 1, 2012), in order to properly protect the legal interests of the association members, the legal order or prohibition against the association’s officers from the time of authorization for establishment to the time when the association loses its status under public law, or from the time when the status ceases to exist due to its objective, shall be deemed to be valid. This is because the above provisions were derived from the purpose of ensuring that the association, which has legal substance by the disposition of authorization to establish an association, is operated in a transparent and fair manner.

(B) An offense is established at the time of the association’s arbitrary implementation of the project without a resolution of the general meeting, even though the association’s officers should undergo the resolution of the general meeting. In addition, if the association’s officers fail to disclose the documents and materials relating to the implementation of the project along with the Internet and other means, or fail to comply with the request for inspection or copying by the association members or owners of lands, etc., the offense is established at that time. In addition, if the association’s officers

It is natural to punish an offender as long as he/she violated the legal order or prohibition given to the partnership’s officers at the time of the above act with an objective view to the fact that he/she was the partnership’s executives at the time of the act. This is true even if a judgment to nullify or cancel the establishment of a partnership becomes final after the establishment of the crime, and such result cannot be deemed as a violation of the principle of no punishment without the law. The issue of whether an already established crime can be assessed differently at the time of the judgment based on the circumstance that the act was committed after the completion of the crime, such as the invalidation or cancellation of the establishment of a partnership, is different from the principle of no punishment without the law.

[2] In a case where the Defendants, who were executives of a housing redevelopment and rearrangement project association, were indicted for violation of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11293, Feb. 1, 2012; hereinafter “former Act”), on the grounds that they conspired to select a removal supervisor or failed to disclose data, etc. related to the implementation of a rearrangement project without a resolution of a general meeting, the case holding that the Defendants cannot be punished for the violation of the above provisions even if the Defendants committed the above violation, since the disposition of approving the establishment of an association was null and void and the association under Article 13 of the former Act cannot be established from the beginning, on the grounds that the disposition of approving the establishment of an association cannot be deemed to have been established.

[1] Articles 8(1), 13, 18, 20(1)5, 21(1), 24(3)5, and 81(1) (see current Article 81(1) and (6)), 85 subparag. 5, and 86 subparag. 6 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 11293, Feb. 1, 2012); Articles 1(1) and 30 of the Criminal Act; Articles 13, 24(3)5, 81(1)2, 86 subparag. 6, and 86 subparag. 6 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 11293, Feb. 1, 2012); Articles 8(1) and 81 subparag. 6, 86 subparag. 1, 86 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

[1] Supreme Court Decision 2008Da60568 Decided September 24, 2009 (Gong2009Ha, 1735), Supreme Court Decision 2009Du4845 Decided January 28, 2010 (Gong2010Sang, 434), Supreme Court Decision 2008Da9585 Decided March 29, 2012 (Gong2012Sang, 625), Supreme Court Decision 201Du518 Decided November 29, 2012 (Gong2013Sang, 60)

Defendant 1 and one other

Defendants

Attorneys Yoon Young-young et al.

Seoul Northern District Court Decision 2011No1618 decided May 23, 2012

The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.

1. A. 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. 11293, Feb. 1, 2012; hereinafter “former Act”) provides that Article 24(3)5 of the same Act provides that “executive of a cooperative who arbitrarily promotes a contract to become a burden on its members, other than the matters prescribed in the budget, without undergoing a resolution of a general meeting pursuant to Article 24(5) shall be punished, and Article 86 Subparag. 6 of the same Act provides that “executive of a cooperative” who fails to comply with a request of its members for inspection and copying of documents and materials related to the implementation of a rearrangement project in violation of Article 81(1) shall be punished.

In addition, Article 8(1) of the former Act provides that a project implementer who can implement a housing redevelopment project refers to a “association under the provisions of Article 13,” and Article 13 provides for the requirements, procedures, etc. for the establishment of an association consisting of owners of land, etc. to implement a rearrangement project. In addition, Article 20(1)5 of the former Act provides that “association’s executives” refers to “executives of an association under the provisions of Article 21,” and Article 21(1) provides that a cooperative shall have one head, director, and auditor as its executive officers.

In full view of the above provisions, only the actors stipulated in each provision can be the subject of the violation of Article 85 subparagraph 5 of the former Act or the violation of Article 86 subparagraph 6 of the same Act. Here, the "executive officer of a cooperative" or "partnership's officers" defined as the subject of the Act is the one who is the head of a cooperative, director, or auditor of a cooperative established by an association established by an association to implement a rearrangement project pursuant to Article 13 of the former Act.

B. However, according to Article 18 of the former Urban Improvement Act, an association consisting of owners of land, etc. and intended to implement a rearrangement project is established by registration after meeting the requirements and procedures prescribed in relevant Acts and subordinate statutes, including Articles 13 through 17, and is recognized as an administrative body that implements a rearrangement project within the rearrangement zone under the supervision of the competent administrative agency only once. Here, the administrative agency’s disposition to establish an association has the nature of a sort of permanent authority that grants the status as an administrative body that has the authority to implement a rearrangement project (see, e.g., Supreme Court Decisions 2008Da60568, Sept. 24, 2009; 2009Du4845, Jan. 28, 2010). Accordingly, if an association consisting of owners of land, etc. did not obtain an authorization to establish a rearrangement project in the process of its establishment, or even if such authorization was granted, it cannot be deemed as an administrative body that has the authority to implement a rearrangement project under Article 13 of the former Urban Improvement Act.

In light of the above legal provisions and legal principles, in a case where a certain association seeking to implement a rearrangement project obtains an authorization to establish the association, and it cannot be deemed that the association under Article 13 of the former Act was established from the beginning because the disposition to authorize the establishment of the association becomes null and void, the person appointed as the head of the association, director, or auditor of the association who did not establish the association does not constitute an "executive of the association" or "executive of the association" who is the subject of the violation of Article 85 subparagraph 5 of the former Act or Article 86 subparagraph 6 of the former Act, and therefore, an act of such person cannot be punished as a violation of Article 85 subparagraph 5 of the former Act or a violation of Article

2. The record reveals the following facts.

A. The summary of the facts charged in the instant case is as follows: Defendant 1 and Defendant 2, who was the president of the ○○○○○ Housing Redevelopment and Improvement Project Association (hereinafter “the instant association”); Defendant 2, a general director of the instant association, conspired on December 16, 2009, selected △△△△△ Construction Business Office without a resolution of the association’s general meeting; ② on January 28, 2009, Non-Party 1 applied for a request for the disclosure of the attorney’s fees for the instant case related to the association; and ③ on January 18, 2011, Non-Party 2 and 3 applied for a request for the disclosure of the selection date and method of selection, the details of payment of supervision expenses, the details of payment of removal expenses, and the details of payment of asbestos related to asbestos, but rejected such request, thereby violating Article 85 subparag. 5, Article 24(3)5 and Article 86(1)6 and Article 81(1).

B. However, Nonindicted Party 1 and 4, a member of the instant association, filed a lawsuit claiming that “the Defendant confirmed that the disposition of approving the establishment of the instant association against the instant association on October 24, 2006,” with the head of Dongdaemun-gu Seoul Metropolitan Government as the Defendant, was invalid, and the judgment of nullification of the disposition of approving the establishment of the instant association was rendered on June 25, 2010. On February 17, 2011, the appeal was dismissed in Seoul High Court 2010Nu23011, and the final appeal was dismissed in the Supreme Court 2011Du7656 Decided May 24, 2013.

3. Examining the above facts in light of the legal principles as seen earlier, since the disposition of approving the establishment of the association of this case becomes null and void, the association under Article 13 of the former Act cannot be established from the beginning. As such, the Defendants appointed as the president of the association of this case and the chief director of the association of this case as the principal of the association of this case cannot be the principal of each violation under Articles 85 subparag. 5, 24(3)5, 86 subparag. 6, and 81(1) of the former Act, which are stated in the facts charged of this case, and even if the Defendants committed each violation, the Defendants cannot be punished as a violation of each of the above provisions.

Therefore, without further examining the grounds of appeal as to whether the Defendants violated each of the facts charged in this case’s Act, the court below erred by misapprehending the legal principles on the violation of Article 85 subparag. 5 of the former Act and the violation of Article 86 subparag. 6 of the former Act, thereby affecting the conclusion of the judgment.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Shin Young-chul, Justice Ko Young-han, Justice Kim Chang-suk, and Justice Kim Shin, and a concurrence with the Majority by Justice Lee In-bok, Justice Lee Sang-hoon, and Justice Kim Yong-deok, and a concurrence with

5. Dissenting Opinion by Justice Shin Young-chul, Justice Ko Young-han, Justice Kim Chang-suk and Justice Kim Shin

A. The Majority Opinion states its opinion on the premise that a judgment confirming the invalidity of the disposition approving the establishment of a partnership becomes final and conclusive, but the same opinion appears to have the same opinion in that the disposition approving the establishment of a partnership should be deemed retroactively null and void at the time of the disposition approving the establishment of a partnership, and both cases are examined.

According to the majority opinion, where a partnership implements a rearrangement project after obtaining a authorization for establishment and the disposition of authorization for establishment becomes final and conclusive as invalid or revoked, the authorization for establishment will result in no beginning. Accordingly, even if the partnership's officers fail to perform the obligations imposed under Article 24 (3) or 81 (1) of the former Urban Improvement Act, and the act was already established as a crime, the obligations imposed on the partnership officers cannot be deemed as valid, and as a result, the violation of each of the above provisions, which was already established as a crime, shall not be retroactively committed. In addition, even where the partnership's officers have already been established by giving and receiving money from the contractor, the establishment of the crime of acceptance of bribe shall be denied retroactively.

This interpretation would seriously damage the function of the criminal law (use in the meaning of the special criminal law, including the special criminal law) which performs the function of protecting legal interests, and at the same time, make the establishment and punishment of the crime at the time of the act be not fixed but flexible, thereby clearly impairing the nature of the criminal law as a norm of act. This is the result of excluding the independent nature and function of the criminal law, and putting the theory of public law arbitrarily into the interpretation of the criminal law.

B. Although the disposition of authorization to establish an association is invalid or revoked, if no legal effect is denied, the disposition of authorization to establish the association will act as an administrative disposition with an entity and form a public order based on it. In addition, it is evident that such formed public order has an entity under public law. Likewise, even if the disposition of authorization to establish an association was rendered final and conclusive judgment of nullification or revocation of the disposition of authorization to establish an association, it is obvious that the disposition of authorization to establish an order of public law based on it is acting as an administrative disposition with an entity, and that the order of public law formed thereby has an entity under public law.

In each of the above cases, separate from whether public law protection can be given to the public law order that has existed with an entity to a certain extent, the criminal law protection may be given to the public law order that has existed with an entity. This is because the criminal law, according to its normative purpose, may not coincide with the effectiveness of the judiciary or the public law, and may provide criminal protection without complying with its normative purpose.

Nevertheless, the Majority Opinion: (a) where a disposition to establish an association is revoked or invalidated by a judgment, the disposition to establish an association loses its validity retroactively at the time of the disposition to establish the association; (b) accordingly, the relevant association loses its status as an administrative agent, which can implement a rearrangement project under the Urban Improvement Act retroactively at the time of the disposition to establish the association (see, e.g., Supreme Court Decision 2011Du518, Nov. 29, 2012). The logic of public law is accepted as it is in the interpretation of the Criminal Act; and (c) on the premise that insofar as the association loses its status as a public corporation retroactively, the partnership’s executives also lose their status retroactively; and (d) on the premise that the partnership

The following questions may be raised with respect to such interpretation. In the event that there is a ground for invalidation in the disposition of authorization for the establishment of a partnership but the partnership is extinguished due to the progress of a rearrangement project and the completion of the purpose after obtaining authorization of the establishment of the partnership, whether the partnership did not have existed from the beginning. In this case, if there is a ground for invalidation in the investigation procedure or criminal trial on violation of the above provisions or acceptance of bribe, the investigation agency or the court shall investigate or examine whether there is a ground for invalidation, and if there is a ground for invalidation, the investigation agency shall make a non-prosecution disposition with respect to the crime of violation of the above provisions or acceptance of bribe, and the court shall make a non-guilty disposition with respect to the crime of violation of the above provisions or acceptance of bribe, and the court shall make a verdict of innocence? It is doubtful because the assertion of grounds for invalidation is not limited by administrative litigation, but can be asserted as a preliminary question in other litigation than administrative litigation. Furthermore, if the judgment becomes final and conclusive after the violation of the above provisions or the crime of acceptance of bribe becomes final and conclusive after the judgment becomes final? If it is possible, it can be accepted or justified after the retrial.

The criminal law has the function of protecting legal interests, guaranteeing freedom, and function as a norm of conduct and a norm of trial.If there is a doubt about the interpretation of the criminal law, the key to the solution is the right length to find in light of the function of the criminal law.

C. Interpretation by the Majority Opinion is fundamentally denying the function of protecting legal interests under the Criminal Act.

1) Article 24(3) of the former Act provides that matters prescribed by Presidential Decree or articles of incorporation shall undergo a resolution at a general meeting, which are necessary to determine major matters, such as an amendment of the articles of incorporation, borrowing of funds, methods of and interest rate and method of repayment, amount of expenses and method of collection, use of rearrangement project expenses, contracts to be borne by partners, constructors, designers or appraisers, selection and change of rearrangement project management contractors, selection and dismissal of partnership partners, details of allocation of rearrangement project costs by partnership members, formulation and change of project implementation plans, formulation and change of management and disposal plans, collection and payment of settlement money, accounting report at the time of dissolution of partnership, and other matters imposing economic burden on partnership members, other than those stipulated in the budget. Meanwhile, Article 85 subparag. 5 of the former Act provides that an executive of an association which voluntarily promotes a project under this Article shall be punished by imprisonment for not more than two years or by a fine not exceeding 20 million won (see, e.g., Supreme Court Decision 200Do1694, Apr. 20, 2019).

In addition, Article 81(1) of the former Act provides that the executives of an association shall concurrently disclose the documents and materials related to the implementation of a rearrangement project, including the rules of operation of the committee, articles of association, etc., selection contracts for service enterprises, such as designers, work executor, removal business operators, and rearrangement project management contractors, minutes of the committee of promoters, residents' general meeting, association and representatives' meeting, project implementation plan, management and disposal plan, public documents concerning the implementation of the relevant rearrangement project, accounting report and other related documents and materials prescribed by Presidential Decree, and shall immediately comply with the request of the association members or owners of the land, etc., so that they can be informed of the association members, landowners, or tenants. Meanwhile, Article 86 subparag. 6 of the former Act provides that the executives of an association who do not comply with the request of the association for inspection or copy of the documents related to the implementation of the rearrangement project, such as the implementation of the improvement project and the provision on the implementation of the project and the provision on public inspection or copy of the data related to the implementation of the project shall be made publicly by the association's and association executives.

Furthermore, Article 84 of the former Urban Improvement Act provides that the partnership's officers shall be deemed public officials in the application of Articles 129 through 132 of the Criminal Act in order to prevent the above corruption which may arise from the partnership's officers, and the partnership's officers shall be punished for bribery in cases where the partnership's officers receive money from the contractor, etc.

2) Examining the above provisions, in order to protect the legal interest of the association members, etc. and the association’s legal interest can be properly protected, it should be deemed that the legal order or prohibition as to the association’s officers is valid from the time of authorization for establishment to the time when the association is finally determined to lose its status under the public law, or from the time when the above legal status ceases to exist due to the achievement of its purpose. This is because the above provisions were created for the purpose of enabling the association, which has a legal substance, to operate in a transparent and fair manner.

If it is affirmed that there is no need to protect the legal interests of the association members, etc. under the above provisions, even if it is interpreted as the majority opinion with respect to a partnership for which a judgment to nullify or cancel the disposition of authorization to establish a partnership becomes final and conclusive, the legal interests of the association members, etc. should be protected. However, in reality, a partnership for which a lawsuit to nullify or cancel the disposition of authorization to establish a partnership is filed by the association members, etc. may have more problems than those of the association, and in such a case, the penal provisions as mentioned above are the penal provisions that protect the legal interests of the association with the association members, etc..

For example, even though a partner who became aware of a serious problem in the partnership requested disclosure, perusal, and copying of related data under Article 81(1) of the former Urban Improvement Act, the partnership's officers could not be punished for failing to comply with the request. After that, the decision of nullification or revocation of the authorization of establishment becomes final and conclusive, according to the majority opinion, the partnership's officers can not be punished. This case appears to fall under such cases. In addition, the partnership's officers are punished outside of punishment in a situation where the disclosure, perusal, and cancellation of the authorization of establishment is essential. Furthermore, the partnership's officers were given and received a bribe from the contractor after obtaining the authorization of establishment through the operation of written consent to meet the consent rate necessary for the authorization of establishment in order to conduct an urban rearrangement project with care of the contractor, and then the partnership's officers asserted that the disposition of authorization of establishment should be invalidated or cancelled as a result of acceptance of bribe, and that the partnership's officers should not be punished under the majority opinion which requires a more implied punishment.

Ultimately, the interpretation of the Majority Opinion leads to a partial private culture of the above penal provisions, which has a core part of the function of protecting legal interests carried out by the above penal provisions.

D. Interpretation by the Majority Opinion is fundamentally detrimental to the function of the Criminal Act as a norm of conduct and a norm of trial. Moreover, it is inconsistent with the function of the Criminal Act that guarantees the freedom and rights of the people.

1) The Criminal Act should be interpreted under the premise that the act is in essence a norm of conduct. Therefore, the establishment and punishment of a crime must not only be governed by the law at the time of the act (Article 1(1) of the Criminal Act), but also be determined based on the circumstances at the time of the act. Inasmuch as it is recognized that the act was in violation of the order, norm or prohibition norm at the time of the act, it is deemed that

If an association’s executives are required to undergo the resolution of a general meeting but arbitrarily implement projects related thereto without the resolution of a general meeting, the crime is established at that time. In addition, if an association’s executives fail to disclose the documents and data relating to the implementation of an improvement project in parallel with the Internet and other means, or do not comply with the request for inspection or reproduction by the association members or the owners of land, etc., the crime is established at that time. In addition, if an association’s executives

It is natural to punish an offender as long as he/she violated the legal order or prohibition given to the partnership’s officers at the time of the above act with an objective view to the fact that he/she was the partnership’s executives at the time of the act. This is true even if a judgment to nullify or cancel the establishment of a partnership becomes final after the establishment of the crime, and such result cannot be deemed as a violation of the principle of no punishment without the law. The issue of whether an already established crime can be assessed differently at the time of the judgment based on the circumstance that the act was committed after the completion of the crime, such as the invalidation or cancellation of the establishment of a partnership, is different from the principle of no punishment without the law.

2) However, according to the majority opinion, where a judgment on nullification or revocation of a disposition approving the establishment of a partnership becomes final and conclusive, the actor cannot be objectively deemed as the partnership partner at the time of each act, and even if the actor perceived himself as the partnership partner, it cannot be deemed as violating the legal order or prohibition given to the partnership partner at the time of the act, and therefore, it cannot be punished under the penal provisions at the time

This would eventually result in a disaster in a different way retroactively to the past entity, which had existed objectively in accordance with the ex post facto evaluation of public law after the crime was committed. This interpretation would result in a conflict between the perspective of the Criminal Act and the substance itself at the time of the act. As a norm of conduct, the Criminal Act requires prohibition or order against the actor, based on the premise of the substance itself at the time of the act. Therefore, the Criminal Act ought to be applied and interpreted on the premise of the substance itself at the time of the act. Nevertheless, the Majority Opinion can be said to be erroneous in replacing the substance that existed at the time of the act with the nature of the Criminal Act as an agent based on ex post facto evaluation. As a result, the Majority Opinion cannot be deemed to have failed to protect the legal interest as seen earlier, and it is bound

According to the majority opinion, in a case where a ground for revocation exists, when a revocation suit has been filed within the lawful filing period and a final and conclusive judgment has been rendered, the effect of revocation is retroactively applied at the time of the disposition of approving the establishment of an association. Thus, the status as an association’s partnership did not have existed from the beginning, and thus, the violation of the Urban Improvement Act or the crime of acceptance of bribe cannot be retroactively established at the time of the act. On the other hand, in a case where a disposition of approving the establishment of an association has expired without filing a revocation suit, and the validity of the disposition becomes final and conclusive upon the lapse of the filing period, the status as an association’s partnership’s partnership’s partner remains effective, and the violation of the Urban Improvement Act or the crime of acceptance of bribe is also established and punished as at the time of the act of acceptance of an association. According to the majority opinion’s interpretation, it becomes final and conclusive at the time of the act. The establishment and punishment of a crime cannot be determined at the time of the act

Such unreasonable circumstances are more significant if there exists a cause for invalidation. This is because, since a lawsuit seeking nullification of a disposition approving the establishment of a partnership can be filed without the limit of the period, the status of partnership officers as an partnership officer at any time due to defects existing in the disposition approving the establishment of a partnership cannot be clearly known.

Ultimately, according to the Majority Opinion, it is difficult to know at the time of the act of an actor’s status as an executive officer. This means that the act of an actor, which is prohibited or ordered under the Criminal Act, cannot function as a clear presentation to the actor at the time of the act of the act, to what extent it infringes on the prohibition or order. In addition, it also has the same problem as a trial norm. In addition, as long as the defendant, who is an executive officer, is in progress or is likely to bring a lawsuit for nullification or revocation of a disposition of authorization for establishment of an association or a revocation thereof, is in progress, it is not clear at the time of trial whether it is reasonable to punish the defendant, who is the executive officer of an association instituted by the crime of violation of the Urban Improvement Act or the crime of acceptance of bribe, as a trial norm, by applying the Urban Improvement Act or the crime of acceptance of bribe. As such, the fact that the act of an actor is established and subject to punishment cannot be confirmed at the time of the act, means that the Criminal Act clearly presenting the limit of the establishment and punishment

In addition, the interpretation by the majority opinion is only a result of punishing an offender who is established, punished, and punished. Such a result does not have the value of protecting the fundamental rights of the offender, but does not enhance the ideal of the rule of law, and rather it is significantly damaged the concept of justice.

E. Examining the above legal principles in light of the above, even if the disposition to establish the association of this case became null and void later, so long as the association of this case was registered as a juristic person with the permission of establishment from the administrative agency, the Defendants shall be deemed to fall under the “executive of the association” or “executive of the association” under Articles 85 subparag. 5 and 86 subparag. 6 of the former Urban Improvement Act. In the same purport, the lower court did not err in the misapprehension of legal principles as to the grounds for rejection of illegality or the grounds for exclusion of responsibility, contrary to what is alleged in the grounds of appeal.

The assertion that the court below erred in the misapprehension of the legal principles under Article 24 (3) 5 of the former Act shall not be a legitimate ground for appeal, since the defendants' grounds for appeal are the grounds for appeal, or the court below's decision is not subject to an ex officio decision.

Furthermore, according to Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for more than ten years has been imposed, an appeal on the grounds of unfair sentencing is allowed. As such, in this case where a more minor sentence has been imposed on the Defendants, the assertion that the amount of punishment is unreasonable cannot be

Therefore, the Defendants’ final appeal shall be dismissed in entirety.

For the foregoing reasons, we respectfully dissent from the Majority Opinion.

6. Concurrence with the Majority by Justice Lee In-bok, Justice Lee Sang-hoon, and Justice Kim Yong-deok

This case is a case where an association is not established, which is an administrative body that can implement a rearrangement project under the former Urban Improvement Act, since the disposition to authorize the establishment of an association is null and void. Therefore, once an association is established effectively, it is different from the case where the disposition to authorize the establishment of an association is revoked and the status of an association is lost ex post

The following is to examine the legal legitimacy of the majority opinion on the case where a disposition to establish an association is null and void, and to simply add in the last time the case where a disposition to establish an association is revoked.

A. That an administrative disposition is null and void means that an administrative disposition is established in an outer form, but its defect is significant and obvious, and thus no legal effect from the beginning exists. Therefore, null and void administrative disposition is not recognized as a fair power granted to an administrative disposition, and it may be asserted in a civil procedure (see Supreme Court Decision 2009Da90092, Apr. 8, 2010, etc.).

Article 4 Subparag. 2 of the Administrative Litigation Act provides for a litigation seeking the invalidation of an administrative disposition in the form of an appeal litigation, but the judgment seeking the invalidation of an administrative disposition is merely a confirmation judgment that confirms and declares that the administrative disposition is null and void, and is not a judgment that establishes a form of a judgment that loses the validity of an administrative disposition. In this respect, only when a judgment seeking the invalidation of an administrative disposition becomes final and conclusive, the litigation seeking the invalidation of an administrative disposition is essentially different from a litigation seeking the invalidation of an administrative disposition that becomes null and void. Generally, in Supreme Court precedents, the Supreme Court’s opinion on the validity of an administrative disposition that is null and void is to indicate that the administrative disposition is null and void from the beginning. Thus, the Supreme Court’s opinion has been established

Meanwhile, Article 38(1) of the Administrative Litigation Act provides that Article 29 of the Administrative Litigation Act, which applies mutatis mutandis to a lawsuit seeking nullification of an administrative disposition, shall be limited to a third party who is not a party to the lawsuit, if the judgment seeking nullification becomes final and conclusive by applying mutatis mutandis the case of a lawsuit seeking nullification of an administrative disposition. However, this provision, in order to uniformly regulate legal relations in the public law and ensure procedural stability, prevents the third party from asserting the validity of the administrative disposition by expanding the res judicata effect of the judgment seeking nullification of the administrative disposition, not a new effect that is invalidated by the judgment seeking nullification of the administrative disposition. In other words, the judgment seeking nullification of an administrative disposition is merely a declaration of invalidation of the administrative disposition which has no effect, and therefore, the interpretation that the previous administrative disposition becomes retroactively null and void by the judgment seeking invalidation of the administrative disposition, or that it would result in the same effect as the previous administrative disposition which had not been null and void

B. As seen earlier, an administrative agency’s disposition of approving the establishment of an association consisting of owners of land, etc. is not merely a disposition of nature as a supplementary act against the establishment of an association among private persons, but an authoritative disposition granting the status of an administrative body that can implement an improvement project as a public corporation only when it satisfies specific requirements prescribed by law.

Therefore, in a case where a disposition to establish an association is null and void, the committee prepared the articles of association to establish the association, and completed the inaugural general meeting, but there is no difference between the case where the approval to establish the association is not obtained, and the substance of the association as a public corporation consisting of owners of land, etc. under Article 13 of the former Act does not exist from the beginning. In addition, as long as the legal entity and status as an association cannot be recognized, it shall be reasonable that such an association’s substance and status

However, Article 85 Subparag. 5 and Article 86 Subparag. 6 of the former Act provide that an association composed of owners of land, etc. shall punish partnership officers in charge of the act in the event that it fails to comply with the matters prescribed by the former Act in relation to the affairs of the association when it implements a rearrangement project. This premise is that an association consisting of owners of land, etc. and has the status to implement the rearrangement project pursuant to Article 13 of the former Act, and is a public corporation, which is an administrative body. Therefore, if an association was established to establish an association composed of owners of land, etc. and completed its inaugural general meeting for the establishment of an association, but failed to establish an association as a public corporation due to its failure to obtain authorization for establishment, it is not subject to the said provisions, but is not subject to punishment pursuant to the said provisions. Accordingly, if an association cannot be established from the beginning as an executive officer or status under the said provisions.

Ultimately, recognizing the legal effect of an effective association on the ground that the association establishment disposition is null and void, and even after the judgment on nullification thereof became final and conclusive, is inconsistent with the legal principle of invalidation. Although there is no difference before and after the disposition on authorization for establishment of an invalid association, inasmuch as the status of an association and an association’s partnership cannot be recognized in a legal relationship under the administrative law, there is no difference between the two, the provision on the ground that there was a disposition on authorization for establishment of an association cannot be deemed the basis for criminal punishment by recognizing the same status as that of an effective association and an association’s partnership without any special reason, and

C. The Supreme Court has expressed the view that an administrative disposition, which is the premise for criminal punishment, cannot be subject to criminal punishment in the event that the administrative disposition, which is the premise for criminal punishment, is null and void. In other words, the Supreme Court determined that an administrative penalty may not be imposed on the grounds that a breach of duty is not incurred in the event that an order for installation, maintenance, and management of a fire-fighting system, etc. under Article 9 of the Installation, Maintenance, and Safety Control of Fire-Fighting Systems Act is null and void (see Supreme Court Decision 2011Do1109, Nov. 10, 201). Furthermore, the crime of tax evasion under Article 9(1) of the Punishment of Tax Evaders Act is deemed a crime of evading a certain amount of tax obligation recognized as being committed against the State, and thus, the taxation claim should be established on the grounds that the tax claim under the tax law is not established unless the tax liability that the taxpayer satisfies the requirement for tax payment (see, e.g., Supreme Court Decision 201Do6365, Sept. 36, 20198).

As can be seen, a legal principle that cannot be subject to criminal punishment where an administrative disposition, which is a premise for criminal punishment, is null and void, ought to be deemed valid even in this case where an association failed to be established, as the disposition to establish an association is null and void. On the contrary, the interpretation theory that recognizes and punish an administrative entity as a violation of the provisions of the former Act on the Improvement of Urban Areas and Dwelling Conditions for Administrative Entities is beyond the normative purpose and scope of protection as provided in the former Act, and also contradicts the legal principles

In addition, as seen earlier, there is no procedural restriction on claiming the invalidation of an administrative disposition as a matter of course, and the legal effect of an administrative disposition is denied in a civil procedure. As such, there is an administrative disposition in a criminal procedure, it shall be treated equally as effective and shall be restricted, and it shall not be imposed any burden on the investigation and examination of the invalidation. Unlike the cancellation of an administrative disposition, the invalidation of an administrative disposition is insufficient just because it is against any defect in the administrative disposition, and its defect is limited to an essential part of the laws and regulations, and it is objectively obvious. Therefore, it is not easy to claim the invalidation. Moreover, even though there is no ground for invalidation, the defendant who works as an executive of an association without the authorization for establishment of an association, claims the invalidation of the administrative disposition is rare, and the degree of the burden is not large. Moreover, the same conclusion as denying the legal effect of the administrative disposition, regardless of the absence of any burden on it, should not be taken in the same way as the criminal procedure is applied to the case where the defendant is not subject to strict criminal punishment or judgment on the grounds of invalidation.

D. In a case where a disposition to establish an association is taken, the association is promoting the rearrangement project on the premise that the disposition to authorize the establishment is valid, so it is acceptable to agree with the view that the procedural legality and transparency in the process should be guaranteed regardless of the invalidation of the disposition to authorize the establishment.

However, the issue of whether the Act orders the performance or prohibition of a certain act, and furthermore, whether to punish the violation of the duty is all the issue of legislative policy. Therefore, even if it is necessary to guarantee procedural legality or transparency regardless of the validity of the disposition approving the establishment of an association, the former Urban Improvement Act requires the provisions that order the performance or prohibition of such act in order to recognize it as a legal obligation required by the former Urban Improvement Act, and furthermore, the provisions that order the performance or prohibition of such act should be established in order to punish the violation of the duty.

However, as seen above, the above provisions of the former Urban Improvement Act do not stipulate the association or partnership's officers prior to establishment. Considering that an association composed of owners of land, etc. has been established and the status as a public corporation, which is an administrative subject, the legislators impose a certain duty of act in relation to the performance of duties as a public corporation, and impose criminal punishment on an association not constituted, unlike the civil law, an incorporated association or incorporated foundation, and excludes the association from subject to application of the above provisions of the former Urban Improvement Act or subject to criminal punishment.

In addition, even if there is a need to allow or prohibit a certain act to be performed, it does not lead to the logic that the act must be subject to criminal punishment so that the act can fulfill the function of protecting legal interests with the norm of conduct, etc. In other words, what kind of sanctions should be imposed on the act of violating the norm of order or the prohibition norm is a matter of the legislator’s choice. The legislators may grant a civil right to claim damages or a right to claim performance against the act of violating the norm of order or the prohibition norm, and may provide administrative punishment, such as administrative fines, and may also use a strong means of criminal punishment in cases where it is deemed that the protection of legal interests essential to the social life

In this case, since the authority to establish an association is null and void, the Defendants cannot be subject to criminal punishment for refusing to peruse and copy the acts and materials, etc. conducted without the resolution of the general meeting. In other words, even before the establishment of the association, those appointed as partnership officers have certain obligations in relation to partnership or association members as prescribed by the articles of association, etc., such acts of the Defendants, who are appointed as partnership officers, may also constitute nonperformance or tort under the Civil Act in relation to partnership or association members, and the partnership officers may be dismissed at the general meeting on the grounds of such acts. In fact, according to the records, the articles of association of the association of this case appears to have provisions similar to those of Articles 24(3)5 and 81(1) of the former Urban Improvement Act, and thus, the union members may be held liable for civil liability such as demanding the Defendants to perform their duties in relation to the violation of the obligations prescribed by the articles of association.

E. The interpretation of penal provisions must be strict, and the interpretation of the explicit penal provisions in the direction unfavorable to the defendant is not permitted in light of the principle of no punishment without the law (see Supreme Court Decision 2011Do7725, Aug. 25, 201).

The term “executive officer of a cooperative” or “partnership officer of a cooperative” as prescribed by Articles 85 subparag. 5 and 86 subparag. 6 of the former Act refers to a constituent element for the formation of an offense, and the existence of such constituent element is determined in principle by the interpretation of an individual statute, not in the area of independent concept or judgment under the criminal law. Therefore, even if a partnership officer is appointed as an partnership officer, as long as the legal status of partnership and partnership officer as prescribed by the former Act cannot be acknowledged because the disposition to establish an association cannot be recognized as invalid, it shall not be a principal prescribed as constituent element under Articles 85 subparag. 5 and 86 subparag. 6 of the former Act, and shall not be viewed differently

The Supreme Court recently held that, where a management entity specialized in improvement projects as prescribed by the former Act is a stock company, “executive officers deemed public officials under Article 84 of the same Act” shall be limited to the representative director, director, and auditor in the commercial register at the time of the acceptance of bribery falling under Articles 129 through 132 of the Criminal Act. Even if the actual manager is a stock company, it is unreasonable to interpret that a management entity specialized in improvement projects who is deemed public officials under Article 84 of the former Act constitutes “executive officers” of a management entity specialized in improvement projects who are deemed public officials under Article 84 of the former Act, because it excessively analogys or expands criminal laws in the direction unfavorable to the defendant, and thus, it violates the principle of no punishment without the law (see Supreme Court Decision 2013Do9690, Jan. 23, 2014). In addition, the Supreme Court held that one of the criminal agents of violation of Article 86 subparag. 6 of the former Act, which is the head of an association or partnership’s executive officers’s statutory interpretation under Article 17 subparag. 86 of the former Act.

As above, the purport of the Supreme Court decisions which strictly interpreted the elements of penal provisions under the former Act according to the principle of no crime without the law should be maintained in this case. Even if there is a need to guarantee procedural legality or transparency in the course of performing the business in the case of an association which is not effective as seen earlier, a new provision under the Urban Improvement Act shall be included in the legislative theory that reflects such need, and it also includes a case where the disposition of approving the establishment of an association, which is an element of Article 85 subparagraph 5 and subparagraph 6 of Article 86 of the former Urban Improvement Act, is null and void and thus the legal status of an association cannot be recognized. It is against the principle of no crime without the law.

F. Unlike the case where a disposition to establish an association is invalid, where there is a ground for revocation of the disposition to establish the association, the disposition to establish the association shall be deemed effective before the cancellation due to the impartiality of the administrative disposition, and the administrative agency’s revocation or revocation of the disposition to establish the association shall lose its validity only after the judgment becomes final and conclusive. However, since the revocation is recognized as a retroactive effect and the disposition to establish the association which is treated as effective prior to that time becomes invalid retroactively, the issue

First of all, the issue arising from the cancellation of administrative disposition is different from the invalidation of administrative disposition which is not recognized from the beginning in that it is treated as effective before the cancellation, so the legal principles as seen earlier with respect to a case where administrative disposition is null and void cannot be said to be applied as it is in the case of cancellation, and it shall be reasonably determined in consideration of the special circumstances such as cancellation.

However, in the case where an administrative disposition is revoked, the Supreme Court has taken a view of denying the administrative disposition. The Supreme Court has determined that the disposition of revoking the driver's license becomes retroactively effective at the time of the disposition of revoking the driver's license, and that if the disposition of revoking the business license itself was revoked by the administrative litigation procedure later, the disposition of revoking the business license becomes final and conclusive that the obligation to obey the disposition of revoking the business license was not original (Supreme Court Decision 93Do277 delivered on June 25, 1993), and that if the defendant was subject to the disposition of revoking the driver's license from the administrative agency but the administrative disposition was revoked by the administrative litigation procedure later, the disposition of revoking the driver's license becomes retroactively effective at the time of the disposition of revoking the driver's license, and it is reasonable to view that the disposition of revoking the driver's license becomes final and conclusive that the disposition of revoking the driver's license becomes invalid only in the future by the administrative litigation procedure, and that the disposition of revoking the driver's license becomes void only in the future (see Supreme Court Decision 999Do29999.).

In light of the above Supreme Court precedents, even if the status of a public corporation as an administrative entity promoting a rearrangement project on the premise that the disposition to establish an association is valid and the authority of its executives is recognized and the authority of its executives is imposed accordingly, if the disposition to establish an association loses its validity retroactively at the time of the disposition to establish an association, the association concerned loses its status as an administrative entity that can implement a housing reconstruction project under the Urban Improvement Act retroactively to the time of the disposition (see the above Supreme Court Decisions 2008Da9585, supra; 2011Du518, supra). Thus, it can be said that the obligation under the administrative law that assumes the status of the executives of the association or the obligation to obey it becomes final and conclusive, and thus, it cannot be punished as a violation of the administrative law.

Even if a penal provision functions as a norm containing an order or prohibition, the issue of criminal punishment is final and conclusive through a criminal trial, and in a criminal trial, it cannot be denied whether guilty is based on the legal relations and facts finally revealed in the trial proceedings. Even if an administrative disposition is unlawful or aggravated by an administrative disposition at the time of the act, if it becomes final and conclusive that there is no illegality or aggravated punishment, then it may be an issue whether to punish the person for the past administrative legal obligations and the violation of such duties at the time of the act, or whether to punish the person on the basis of the final and conclusive state where there is no violation of such duties. However, it is doubtful whether there is a view that the provision or grounds for punishing the violation of the administrative legal obligations in the past should be punished on the basis of the provisions or grounds for punishment for the violation of the administrative legal obligations in the past are unclear. Rather, in light of the principle of no crime without the law and the principle of presumption of innocence, it is reasonable to interpret the same purport as the above Supreme Court precedents in the future, which will be possible in the future.

As above, I express my concurrence with the Majority Opinion.

7. Opinion concurring with the Dissenting Opinion by Justice Kim Chang-suk

A. The supplementary opinion to the majority opinion is that if a union loses its status under public law by a judgment to nullify or revoke a disposition of authorization for establishment, it cannot be deemed that there was an entity under public law from the time of the disposition of authorization for establishment, and as a result, the partnership’s officers cannot be deemed to have existed from the time of the disposition of authorization for establishment or the status of partnership’s officers

However, this interpretation is thought to be confused between the issue of legal evaluation and the issue of legal substance. Even if a union has an entity under public law by implementing a rearrangement project after receiving the authorization for establishment, the status of public law can be denied because it does not meet the lawful requirements of the authorization for establishment, but the status of public law is denied, and the public law does not lose the substance of public law formed from the authorization for establishment to the final evaluation. This is because public law leaves the issue of how to restore the substance of public law already established. However, there is no ground to regard the prohibition or order under the penal provisions that had been applied to the executive officers of the union who had a substance of public law during that period. At the same time, it is only possible that the union loses the status of public law and the need not be realized more than the normative purpose of the penal regulations. Ultimately, the issue of whether the union can be deemed an executive officer of the union with the judgment to nullify or cancel the authorization for establishment should be determined after examining the purpose of the penal provisions after examining the interpretation of the penal provisions.

The purpose of this penal provision is to restrain the outcome of an unfair operation of a cooperative and a ice fly, which may affect the majority of its members and an association and become a social problem beyond an individual problem. This is because the penal provision is not subject to regulation only in the case of the former, regardless of whether a cooperative that received the authorization of establishment loses public status or is subject to regulation due to invalidation or cancellation of the authorization of establishment, in the middle of its extinction, or in the middle of its extinction. There is no reason to exclude the latter from subject matter of regulation. Even if a cooperative loses public status in the middle of a year due to invalidation or cancellation of the authorization of establishment, the obligation that the cooperative has assumed until that time remains at the expense of the cooperative or the cooperative or at the expense of the group. Accordingly, there is also a need to demand a transparent and fair operation of the cooperative, and in order to realize this, there is also a need to prohibit or issue a legal order in accordance with the penal provision.In conclusion, the purpose of the penal provision against the partnership's officers cannot be said to be valid only when the cooperative exists.

B. The supplementary opinion to the majority opinion is based on the logic that the judgment to nullify the establishment of a partnership is subject to the disposition to authorize the establishment of a partnership, and that the disposition has no effect from the beginning, and that the disposition has no effect as a formative effect, such as the cancellation judgment, and that the judgment to invalidate the establishment of a partnership is to be absolutely applied to the application or interpretation of the Criminal Act. According to the logic of invalidation, in a case where the judgment to nullify the establishment of a partnership becomes final and conclusive, even if the association has engaged in public acts as an association until the judgment to nullify the establishment of a partnership becomes final and conclusive, it can be recognized that the association has only had the appearance as an association, and it cannot be deemed that the association has an substance of public law as an association, and therefore, it is inevitable to view the same as the association that did not obtain the establishment authorization. From the extension of the logic, an executive officer of a partnership with only such appearance is the same as

However, this understanding is criticized in that it did not fully examine the nature of a lawsuit seeking confirmation of the invalidity of an administrative disposition as an appeal litigation, which is different from that of a lawsuit seeking confirmation of a civil action or a party litigation, as well as the nature of an appeal litigation which is bound to be different from that of a lawsuit seeking confirmation of the invalidity of an administrative disposition. Second, unlike an administrative disposition imposing a single obligation on the other party to the disposition, in that it did not consider the meaning of a disposition allowing establishment of a public corporation and establishing a collective order

First, it should be clearly perceived that a judgment seeking nullification of the disposition approving the establishment of a partnership does not have a big difference from the revocation judgment in terms of its function or effect. Whether any defect exists in the disposition approving the establishment of a partnership or whether it falls under the grounds for invalidation or not, cannot be accurately known until a final judgment is made. Therefore, even if there is a ground for invalidation in the disposition approving the establishment of a partnership, as long as no final judgment is made on the ground for invalidation, it cannot be distinguished from the absence of a final judgment on the ground of the existence of the grounds for revocation, or from the absence of any defect, and as in such a case, the association shall enjoy the status of public law, as well as from the case of a final judgment through a lawsuit seeking nullification of the disposition approving the establishment of a partnership. As such, as in the case of a ground for revocation of the disposition approving the establishment of a partnership, it can be said that the administrative disposition has a de facto formation effect, as in the end, as in the litigation seeking nullification of the disposition approving the establishment of a partnership.

Furthermore, the Supreme Court has held that it is reasonable to deem that there is no legal interest in seeking nullification as well as revocation of a management and disposition plan after the relocation public announcement became effective, since all the rights belonging to the majority of the association members, which are uniformly and uniformly processed with the entry into force of the transfer public announcement, should be invalidated, and it is contrary to the public interest and organization law of the rearrangement project. Since the relocation public announcement becomes effective, it is reasonable to deem that there is no legal interest in seeking nullification as well as revocation of a management and disposition plan (see Supreme Court en banc Decision 2011Du6400, Mar. 22, 2012). In light of the purport of the foregoing precedents, a lawsuit seeking nullification of a disposition approving the establishment of a partnership shall be deemed to be subject to restriction in fact due to the public interest of the rearrangement project and the limitation from the nature of the organization law. This means that even if there is a ground for invalidation of a disposition approving the establishment of a partnership, the status of the public law shall not be denied after a certain point of time. In this regard, it can be known that a lawsuit seeking nullification

C. As seen earlier, even if the grounds for invalidation exist in the establishment authorization disposition, the association, as a matter of course, shall not lose its status in the public law according to the legal doctrine of invalidation, and as long as it is not determined by the final judgment through the litigation for invalidation confirmation, the association shall hold its status in the public law and even if the status in the public law is ex post facto denied by the judgment for nullification confirmation, the issue of whether the public law can be interpreted as being applied to the public law entity should be determined by the normative purpose of the penal provisions.

As above, I express my concurrence with the Dissenting Opinion.

Justices Yang Chang-tae (Presiding Justice)