[1] Acts and subordinate statutes applicable to the alteration of use of "a building which constructs a facility other than a house and a house as the same building after obtaining a building permit under Article 11 of the Building Act" under Article 46 (4) of the former Enforcement Decree of the Housing Act

[2] The meaning of "user of multi-family housing" under Article 91 of the former Housing Act, and whether a person who leases and uses ancillary facilities or welfare facilities under the same Act is included therein (negative)

[3] Whether an order to take measures under Article 91 of the former Housing Act should be lawful in order to establish a crime of violation of Article 98 (12) of the same Act (affirmative)

[1] Article 42(2)1 of the former Housing Act (Amended by Act No. 1215, Dec. 24, 2013; see Article 35(1)1 of the current Multi-Family Housing Management Act); Article 46(1) of the former Enforcement Decree of the Housing Act (Amended by Presidential Decree No. 27444, Aug. 11, 2016; see Articles 2 subparag. 4 and 3 of the current Enforcement Decree of the Multi-Family Housing Management Act); Article 47(1) [Attachment 3] Article 35(1) [Attachment 4] Article 9 of the current Enforcement Decree of the Multi-Family Housing Management Act (Amended by Act No. 1215, Dec. 24, 2013; see Article 12(1)1 of the current Multi-Family Housing Management Act; Article 11 of the Building Act / [2] Article 46(1) of the former Enforcement Decree of the Multi-Family Housing Management Act (Amended by Act; see current Article 2 subparag. 13 subparag. 15, Article 2 subparag. 14, Article 215 of the current Enforcement Decree of the Housing Act)

[3] Supreme Court Decision 2007Do3918 Decided July 13, 2007, Supreme Court Decision 2006Do824 Decided June 25, 2009 (Gong2009Ha, 1246)

Defendant

Defendant

Busan District Court Decision 2014No3539 Decided December 19, 2014

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

The grounds of appeal are examined.

1. As to the allegation in the grounds of appeal that the act does not constitute a violation of Article 42(2)1 of the former Housing Act (amended by Act No. 12115, Dec. 24, 2013; hereinafter the same)

A. Article 42(2)1 of the former Housing Act provides that “Where an occupant or user of a multi-family housing or a management entity intends to use a multi-family housing for any purpose other than that specified in a project plan, he/she shall obtain permission from the head of the relevant Si/Gun/Gu or file a report in accordance with the standards, procedures, etc. prescribed by Presidential Decree.” According to such delegation, Article 46(1) of the former Enforcement Decree of the Housing Act (wholly amended by Presidential Decree No. 27444, Aug. 11, 2016; hereinafter the same shall apply) provides that “the matters concerning the management of multi-family housing prescribed in Chapter V of the Housing Act and this Chapter shall apply to multi-family housing constructed after obtaining approval for a project plan under Article 16 of the Housing Act (including incidental facilities and welfare facilities; hereinafter the same shall apply in this Article and Article 47), Article 46(4) of the Enforcement Decree of the Housing Act provides that “the alteration of the purpose of use of the housing and its incidental facilities to the entire residential complex shall be subject to Article 17(3).”

In full view of the contents and purport of the aforementioned provisions, the relevant provisions of the Building Act, in principle, shall apply to the alteration of the use of “a building which constructs a facility other than a house and a house in the same building after obtaining a building permit under Article 11 of the Building Act.” Of the relevant provisions of the former Housing Act, it is clear that only the matters concerning “the permission for the alteration of the use of a facility jointly owned by incidental facilities and occupants” under Article 42(2)1 of the former Housing Act and Article 47(1) [Attachment 3] of the former Enforcement Decree of the Housing Act are applicable to the permission for the alteration of the use of a facility jointly owned by occupants. In addition, Article 42(2)1 of the former Housing Act cannot be applied unless the alteration of the use of “resident sports facilities, landscaping facilities, roads and children’s playgrounds facilities”, which are listed facilities.

B. The record reveals the following circumstances.

(1) The instant apartment is the so-called main apartment, which is the three-story underground and 37 floors above ground, and is combined with multi-family housing, neighborhood living facilities, and sales facilities. The instant apartment is subject to the approval of use issued by the Busan Metropolitan City Mayor on July 28, 2006, stating that “the approval of use shall be issued pursuant to Article 16 of the Enforcement Rule of the Building Act.” The application for approval of use prepared by the owner of the instant apartment is stated that the instant apartment was commenced on June 2003 after obtaining permission from 2003-3. Moreover, there is no material to deem that the instant apartment was approved of the project plan under the former Housing Act, etc. In light of these circumstances, it is highly probable to deem that the instant apartment constitutes “a building constructed with facilities other than housing after obtaining the construction permission under Article 11 of the Building Act” as stipulated in Article 46(4) of the former Enforcement Decree of the Housing Act.

(2) The instant MDF room is a room of 17.1m2 located on the first floor of the apartment site of this case, and it seems that the place was designed to keep and manage the main cable, which is a communications facility, from the time of construction.

(3) From March 1, 2013, the Defendant leased the instant MDF room from the shopping mall management office and used it as the office of the Nonindicted Co., Ltd. operated by the Defendant.

C. Examining these circumstances in light of the legal principles as seen earlier, it is highly probable to view that Article 42(2)1 of the former Housing Act and Article 47(1) [Attachment 3] of the former Enforcement Decree of the Housing Act with respect to the alteration of the purpose of use of the apartment of this case is only applicable to the “standards for permission for alteration of the purpose of use of subsidiary facilities and welfare facilities jointly owned by occupants” under the relevant provisions of the former Housing Act and Article 47(1) [Attachment 3] of the former Enforcement Decree of the Housing Act. Moreover, the instant MDF office cannot be deemed to fall under the “resident sports facilities, landscaping facilities, roads and children’s playgrounds facilities within a housing complex,” and therefore, it cannot be readily concluded that Article 42(2)

D. Nevertheless, based on its stated reasoning, the lower court determined that the Defendant’s act of changing the use of the instant MDF room violated Article 42(2)1 of the former Housing Act. In so determining, the lower court erred by misapprehending the legal doctrine on the scope of application under Article 42(2)1 of the former Housing Act and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

2. As to the allegation in the grounds of appeal that the Defendant does not constitute the principal offender under Article 91 of the former Housing Act

A. The principle of no punishment without the law requires that a crime and punishment shall be prescribed by law in order to protect an individual’s freedom and rights from the arbitrary exercise of the state’s penal authority. In light of such purport, the interpretation of penal provisions shall be strict, and an excessively expanded interpretation or analogical interpretation of the meaning of the express penal provisions to the disadvantage of the defendant is not permitted as it is against the principle of no punishment without the law (see, e.g., Supreme Court Decision 2011Do7725, Aug. 25

B. Article 98 Subparag. 12 of the former Housing Act provides that “any person who violates an order to suspend construction works, etc. pursuant to Article 91” shall be punished. Article 91 provides that “The Minister of Land, Infrastructure and Transport or the head of a local government may order the suspension of construction works, restoration to the original state, or other necessary measures where a project proprietor, an occupant, a management body, a council of occupants’ representatives, or a remodelling housing association violates this Act or an order or disposition under this Act.” As such, Article 91 of the former Housing Act provides that “the occupant or user of a multi-family housing” is merely an “user or user of a multi-family housing,” and that “the former Housing Act shall include incidental facilities or welfare facilities under the former Housing Act, or the owner or occupant of such facilities.” Meanwhile, Article 42(2)1 of the former Housing Act provides that “the occupant or user of a multi-family housing or the management body of a multi-family housing shall use the housing for purposes other than the purposes prescribed in the project plan.” Article 42(2) of the former Housing Act provides that “the former Housing Act shall include “the occupant or user”.

In light of the contents of the former provisions related to the Housing Act, the ordinary meaning of the language and text thereof, and the legislative intent of Article 91 of the former Housing Act, etc., it is reasonable to deem that the “user of a multi-family housing” under Article 91 of the former Housing Act refers to a person who occupies or uses a multi-family housing by leasing it, etc. and is not an occupant under Article 2 subparag. 12 of the former Housing Act. In this context, deeming that the “user of a multi-family housing” includes a person who leases and uses ancillary facilities or welfare facilities under the former Housing Act as included in “user of a multi-family housing” includes a person who leases and uses an appurtenant facilities or welfare facilities under Article 91 of the former Housing Act, which is the elements for a crime of violation of Article 9

Meanwhile, in a case where a person, who was ordered to suspend construction, restore to the original state or take other necessary measures by an administrative agency under Article 91 of the former Housing Act, violates such order, the order to punish him/her under Article 98 subparagraph 12 of the former Housing Act shall be lawful. Thus, even if the order to take measures is not null and void as a matter of course, a violation of Article 98 subparagraph 12 of the former Housing Act cannot be established (see Supreme Court Decision 2007Do3918, Jul. 13, 2007, etc.).

C. The record reveals the following circumstances.

(1) As seen earlier, apartment houses, neighborhood living facilities, and sales facilities are combined on the instant apartment, and the Defendant leased the instant MDF room from March 1, 2013 to use it as the office of the Nonindicted Co., Ltd.

(2) On June 26, 2013, the head of the Shipping Team ordered the Defendant to restore the instant MDF room to its original state in accordance with Article 91 of the former Housing Act on the ground that the Defendant’s act of using the instant MDF room as an office constitutes “an act of using multi-family housing for any purpose other than that stipulated in the project plan” under Article 42(2)1 of the former Housing Act, and the Defendant failed to comply with

(3) The prosecutor deemed that the Defendant’s failure to comply with the restoration order constitutes Article 98 subparag. 12 and Article 91 of the former Housing Act, and applied for a summary order as to the facts charged in the instant case.

D. Examining these circumstances in light of the legal principles as seen earlier, the Defendant is only in the position of leasing and using the instant MDF room from the shopping district management office, and the Defendant is not a person who occupies and uses the instant apartment house due to the lease, etc., and cannot be deemed as falling under the “user of multi-family housing” who is the principal offender under Article 91 of the former Housing Act. Therefore, the order of restoration issued by the head of the maritime transportation unit to the Defendant pursuant to Article 91 of the former Housing Act cannot be deemed lawful, and the Defendant’s non-performance does not constitute a violation of Article 98 subparag. 12 of

E. Nevertheless, the lower court found the Defendant guilty of the facts charged in this case on the ground that the Defendant constituted “user of multi-family housing” who is the principal offender under Article 91 of the former Housing Act. In so determining, the lower court erred by misapprehending the legal doctrine on “user of multi-family housing” under Article 91 of the former Housing Act, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal

3. Conclusion

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 on the bench.

Justices Kim Chang-suk (Presiding Justice)