Defendant

Both parties

The highest head of the agency (prosecution), the lower court (public trial)

Attorney Lee So-young et al.

Suwon District Court Decision 2012Gohap2205 Decided January 18, 2013

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of grounds for appeal;

A. Defendant

① misunderstanding of legal principles

The lower court convicted the Defendant by applying Article 86 Subparag. 6 and Article 81(1) 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); however, the lower court erred by misapprehending the legal doctrine on the premise that the Defendant was guilty, while Article 81(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11293, Feb. 1, 2012) was in force between February 9, 2012 and March 27, 2012, the date indicated in the facts charged in the instant case, and even though the foregoing amended Act deleted the duty of perusal and copy of the executives, etc. of the

(2) misunderstanding of facts

Even if the defendant is obligated to disclose to the public as partnership's officers, the documents written in the facts charged are not the documents and related data set forth in each subparagraph of Article 81 (1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, but the defendant disclosed the documents written in the facts charged on July 3, 2012, and thus there was no violation

(3) Unreasonable sentencing

50,000 won of a fine) sentenced by the court below against the defendant is too unreasonable.

(b) Prosecutors;

The sentence imposed by the court below against the defendant is too uneasible and unfair.

2. The facts charged in this case

The Defendant is the head of an association of the “○○ Housing Redevelopment and Improvement Project Association” located in Suwon-si ( Address 1 omitted). The partnership’s officers shall simultaneously disclose documents and related materials concerning “a written contract for the selection of service companies, such as designer, work executor, removal business entity, and rearrangement project management business entity,” “Minutes of a promotion committee, resident general meeting, general meeting of associations, and the board of directors and representatives’ meeting of associations,” “accounting audit report,” “detailed details of monthly deposit and withdrawal,” and shall comply with the request for inspection and copying by union members, etc.

On February 9, 2012, February 14, 2012, February 17, 2017 of the same year, March 8, 200, and March 27 of the same year, the Defendant did not comply with the Defendant’s request for inspection and copying of Nonindicted 1, 2, 3, and 4 regarding the operation of the association from Nonindicted 1, 2, 3, and 4 of the union members at the office of the above union at Suwon-si ( Address 2 omitted), “the list of persons present at the 6/25 City Construction Assembly (documents 3)”, “the books of association account (documents 8),” “the books of account (documents 8) audited by the audit and inspection of the union”, “the details of payment fees paid to the maintenance enterprise and each contracting enterprise, and evidentiary documents (documents 8).

3. The judgment of the court below

The lower court found the Defendant guilty of the instant facts charged by applying Article 86 Subparag. 6 and Article 81(1) 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).

4. The judgment of this Court

(a) The progress and enforcement time of the amendment of the relevant provisions;

The main contents of the facts charged in the instant case are that the Defendant, who is a partner of the partnership, did not comply with the request from the partners for inspection and copying of the documents in the facts charged from February 9, 2012 to March 27, 2012.

In relation to the facts charged, Article 81(1) 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 for the partnership’s officers with the duty to disclose documents and materials related to the improvement project and the duty to comply with the partnership’s request for inspection and copy of documents and materials, and Article 86 Subparag. 6 provides for punishment for the violation of each of the above duties.

However, Article 81 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 11293, Feb. 1, 2012; hereinafter “amended Act”) separate the duty of disclosure and the duty of compliance with the request for perusal and copy under Article 81(1) of the former Act and separate the duty of compliance with the request for perusal and copy under Article 81(1) of the amended Act, and Article 81(6) of the newly established Act provides the duty of compliance with the request for perusal and copy, respectively. Article 86 Subparag. 6 of the amended Act, which is a penal provision, also provides for the duty of disclosure as a person who violates Article 81(1) of the amended Act with respect to the duty of disclosure, as a person who violates Article 81(6) of the former Act with respect to the duty of compliance with the request for perusal and copy

Meanwhile, Article 1 of the Addenda to the amended Act stipulates that the amended Act shall enter into force six months after the date of its promulgation, but the amended provisions of Article 81(1) shall enter into force from the date of its promulgation.

B. Applicable provisions to the facts charged in this case

Article 81(1) of the amended Act, which is a provision on disclosure of the Act, was enforced from February 9, 2012 to March 27, 2012, and Article 86 subparag. 6 of the amended Act, which is a provision on punishment for the violation of both obligations, and Article 81(6) of the amended Act, which is a provision on punishment for the violation of the obligation to comply with the request for perusal and copy, has not yet arrived at the enforcement date. Thus, during the above period, there was no ground provision on the obligation to comply with the request for perusal and copy, and Article 86 subparag. 6 of the former Act applicable to the above period is Article 86 of the former Act.

As long as the penal provisions of the former Act apply, the lower court found the Defendant guilty on the instant charges by applying the former statutory provisions on the grounds that the former statutory provisions are reasonable to apply the former statutory provisions.

C. Determination

(1) The principle of no punishment without the law requires that a crime and punishment shall be prescribed by law in order to protect individual 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 it shall not be allowed to expand or analogically interpret the meaning of the express penal provisions in a manner unfavorable to the defendant without permission (see Supreme Court en banc Decision 92Do1428, Oct. 13, 1992, etc.).

(2) Article 81 Subparag. 6 of the former Act, which is a punishment provision applicable to the date and time indicated in the facts charged, stipulates that partnership officers, etc. violate “Article 81(1)”. The phrase “Article 81(1)” used in the above punishment provision shall be deemed to refer to Article 81(1) of the former Act, which had already been enforced at the time, and the phrase “Article 81(1) of the former Act, which means Article 81(1) of the former Act, which has already been amended and has lost its validity, shall not only contravene the express text of Article 1 of the Addenda to the amended Act, but also shall not be permitted under the principle of no punishment without law, since it constitutes an extended interpretation unfavorable to the defendant.

Ultimately, the acts that can be punished in accordance with Article 81 subparagraph 6 of the former Act shall be limited to the violation of the duty of disclosure under Article 81 (1) of the amended Act.

(3) In addition, even though Article 81 subparagraph 6 of the former Act provides that “the partnership’s officers who do not comply with the request for inspection or copying by the union members” still remain subject to punishment, this part does not have any connection with Article 81(1) of the amended Act, and therefore, the duty clause, which is the premise for punishment, should be deemed defective.

Based on the above language and text, the first head of Article 81(6) of the former Act limits the scope of “in violation of Article 81(1) of the same Act only to “an act that is not disclosed simultaneously with the Internet”. The obligation to comply with a request for perusal and copy is in itself included in the relevant obligation clause. It is not any doubt about the interpretation that other provisions applied at the date and time of the instant facts charged can derive “the obligation to comply with the request for perusal and copy” from Article 81(2) through (5) of the former Act, etc., but there is no doubt about the introduction. In this case, the documents and materials subject to “the obligation to comply with the request for perusal and copy” cannot be specified, and such attempt is not permissible.

D. Sub-determination

Ultimately, even if the Defendant did not comply with the request of a union member for inspection or copy on the date stated in the facts charged of this case, it cannot be deemed as a violation of Article 81(1) of the former Act, which is invoked in Article 86(6) of the former Act, which is a punishment provision.

This result results from incomplete legislation related to the enforcement time of the amended provisions, but even if there is a gap in punishment due to lack of legislation, it is difficult to change the gap through extended interpretation disadvantageous to the defendant under the principle of no crime without law.

Therefore, although the facts charged in this case are not a crime, the court below found the defendant guilty. Thus, the court below erred by misapprehending the legal principles, which affected the conclusion of the judgment.

5. Conclusion

Thus, since the defendant's appeal is well-grounded, the judgment of the court below is reversed under Article 364 (6) of the Criminal Procedure Act without examining the prosecutor's grounds for appeal on the grounds of unfair sentencing, and the following decision is rendered through pleading

【Discretionary Judgment】

The summary of the facts charged of this case is as shown in the above 2. Paragraph 2., as seen in the above 4. Paragraph, since the facts charged of this case does not constitute a crime, the defendant is acquitted pursuant to the former part of Article 325 of the Criminal Procedure Act.

Judges Long-term (Presiding Judge)

(1) Article 81 (Public Disclosure, Preservation, etc. of Related Materials) (1) 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) (1) The chairperson of the promotion committee or the project implementer (in cases of a cooperative, referring to its representative where the owner of a plot of land, etc. independently implements an urban environment improvement project) shall make public the following documents and related materials in parallel with the Internet and other methods so that members, owners of land, etc. or tenants may know of the implementation of the rearrangement project, and shall immediately comply with the request of the association members, owners of land, etc. or the owners of the plot of land, etc. to peruse or copy the documents and materials. In this case, the expenses for copying shall be borne by the claimant within the actual expenses. Any person who falls under any of the following subparagraphs shall be punished by imprisonment with labor for not more than one year or by a fine not exceeding 10 million won:

2) Article 81 (Disclosure, Preservation, etc. of Related Materials) (1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 11293, Feb. 1, 2012) (1) The chairperson of the promotion committee or the project implementer (referring to the representative where the association's executives or the urban environment rearrangement project is implemented independently by the owners of a plot of land, etc. in cases of a cooperative) shall make public the following documents and related data concerning the implementation of the rearrangement project along with the Internet and other methods within 15 days after the documents and related data are prepared or modified. (6) Where the members of the promotion committee or the project implementer request perusal or reproduction of documents and related data including the documents and the following documents under paragraph (1), the chairperson of the promotion committee or the project implementer shall comply with such request within 15 days from the actual cost: