[1] Whether a housing association can allow a person to acquire reserved land without compensation for the contribution of the association head (negative)

[2] The case holding that the defendant, who is the head of a housing association, acquired one debt out of the two debt units in a withholding facility as a compensation for contribution as the head of the association, without compensation, but disposed of the remaining debt units more than the total estimated disposal price of two debt units, and it cannot be deemed that the defendant had a criminal intent to commit a crime of breach of trust in light of the circumstances such as the profit accrued to the association, etc.

[1] Article 356 of the Criminal Code / [2] Article 356 of the Criminal Code

[1] Supreme Court Decision 2001Du11021 Decided June 27, 2003 (Gong2003Ha, 1631) Supreme Court Decision 2003Do6672 Decided August 19, 2005

Defendant

Defendant

Law Firm Barun, Attorney Park Jae-sik

Seoul Southern District Court Decision 2006No632 Decided August 23, 2006

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

1. Summary of the facts charged

The summary of the facts charged of this case is that the defendant is the president of the Housing Redevelopment Association (the victim's regional name omitted) (hereinafter "the cooperative of this case"). According to the articles of association of the association of this case, when he intends to dispose of an apartment building which is a withheld facility, he shall determine the person subject to disposition following the resolution of the general meeting. The selling price shall be calculated by calculating the arithmetic average of the appraisal values of two appraisal business entities under the Public Notice of Values and Appraisal of Lands, etc. Act. The defendant delegated the power to dispose of the withheld facility at the general meeting of the union members held on March 16, 2002 to the board of representatives at the general meeting of the union members held on the premise that there is an urgent situation to the extent that it is impossible to hold the general meeting until the next regular meeting of the union members, but it was held on March 1, 200 and March 16, 2004. The remaining part of the apartment facility's apartment facility's disposal at the meeting of 200,000 won, without compensation.

2. The judgment of the court below

After compiling the adopted evidence, the court below reversed the judgment of the court of first instance that acquitted the defendant for the following reasons, and found him guilty of the facts charged.

(1) The resolution of the general meeting of partners dated March 16, 2002, which delegated the power to decide on the matters concerning the disposition of withholding facilities to the board of representatives, shall be limited to the temporary delegation of the time limit until the next general meeting of partners commences, and the scope of delegation shall be limited to the time limit for the board of representatives to determine the object of appropriate disposition, disposal price, etc., and shall not be deemed to have delegated the withholding facilities to a specific person free of charge.

② In light of the purpose of designating withholding facilities, allowing a specific person to acquire the apartment of this case without compensation is not a method of disposal that can be expected generally by the partners. Thus, it is difficult to deem that the Defendant obtained apartment of this case by legitimate means since the Defendant did not go through such a procedure.

③ It is reasonable to deem that the Defendant had sufficiently known that the act of acquiring withholding facilities without compensation violates his duty to endeavor for the interest of the instant association as the president, and thus, constitutes “act contrary to the intent of delegation.”

④ The crime of breach of trust is established by having the Defendant acquire withholding facilities without compensation and not belong to the victim’s association. The reason why the Defendant sold one of the remaining withholding facilities at a higher price, resulting in the Defendant’s profits more than the estimated price of two of the withholding facilities including the apartment of this case, does not affect the establishment of the crime of breach of trust.

3. The judgment of this Court

However, we cannot agree with the above decision of the court below for the following reasons.

A. According to the records, the association of this case provides for the method of disposal of withheld facilities as one of the matters set forth in Article 15 (1) 12 of the articles of association; Article 19 (1) 4 provides for the matters delegated to the board of representatives as one of the matters set forth by the resolution of the general meeting; the above articles of association provides for the method of disposal of withheld facilities as one of the matters set forth by the board of representatives; Article 51 provides for the preparation for the exercise of the preferential right to purchase land by the landowners omitted from among the persons holding the qualifications for membership; the remaining withheld facilities are determined by the resolution of the general meeting; the remaining facilities are to be sold to the general public; the members of the association of this case on March 16, 202 are entitled to one of the three apartment bonds designated as withholding facilities but are omitted from the management and disposal plan; and the defendant's remaining facilities are to be sold to the non-indicted 1, 200 million won at the 2nd general meeting; and the defendant's remaining facilities are to be sold within the 16th general meeting.

B. First of all, considering the following circumstances, it cannot be concluded that the authority to determine the method of disposal of withheld facilities of the board of representatives has been temporarily delegated to the board of representatives until the opening of the general meeting of members in 2003, just because non-indicted 2, who proposed a proposal to delegate the authority to the board of representatives on March 16, 2002 at the general meeting of members, stated that "it is necessary to delegate the authority to the board of representatives to prepare for an imminent situation before the opening of the general meeting of members," it cannot be said that the authority to determine the method of disposal of withheld facilities has been temporarily delegated only until the time of the general meeting of 203, as stated in the judgment of the court below, and rather, it cannot be said that there is no need to stipulate the detailed contents such as "to delegate the authority until the next general meeting is held." The purport of non-indicted 2 at the general meeting of 3, which is only 00 years prior to the date of the above 20-year general meeting."

C. Next, we examine whether the board of representatives, as in the instant case, made a decision on the method of disposition of withholding facilities to the defendant free of charge, within the scope of the authority duly delegated by the general meeting of the union members.

According to the above provisions of the articles of association, a withholding facility is designated to meet unexpected additional demand in the process of performing a project. However, even if a cooperative sells a withholding facility at a price scheduled in the management and disposal plan to compensate for a certain amount of contribution to the cooperative, as in the instant case, so that the head of the cooperative, etc. can look at the profit-making profit from the market in the manner of compensating for the contribution to the cooperative, as in the instant case, even though it does not go against the purpose of designating a withholding facility (see, e.g., Supreme Court Decision 2003Do6672, Aug. 19, 2005). However, even if compensating for such contribution, it is not permissible to allow the cooperative to acquire the withholding facility free of charge as a result of

However, in this case, the contents of the decision on the method of disposition of withholding facilities of the board of representatives of this case do not merely require the defendant to acquire one apartment house without compensation, but also determine the method of disposition on two apartments of the withholding facilities of this case. "One of the two apartments of the withholding facilities apartments of this case shall be acquired without compensation by the defendant, and the remaining one bonds shall be entrusted to the defendant, and shall be paid in lieu of the construction price in excess of the estimated disposal price of two bonds, and the remaining one bonds shall be disposed more than the estimated disposal price of two bonds, and in fact, the remaining one bonds shall be disposed of more than the estimated disposal price of two bonds, and the partnership shall be paid the construction price liability for the construction works of the partnership with the price of the remaining one bonds in excess of the estimated disposal price of two bonds, thereby eventually the profits of the partnership is more than the total estimated disposal price of the withholding facilities. Thus, the above method of disposition of withholding facilities shall not be deemed to violate the purpose of designating the withholding facilities.

D. In addition, in light of the circumstances leading up to the defendant's acquisition of the apartment of this case with the recognition of his contribution as the head of the association from the association upon delegation by the general meeting of the association members on March 16, 2002 by the resolution of April 14, 2004, it cannot be deemed that the defendant had the criminal intent of breach of trust in acquiring the apartment of this case.

E. Nevertheless, the court below found the defendant guilty of the facts charged in this case on the grounds as stated in the above. The court below erred by misunderstanding facts as to the authority delegated to the board of representatives from the general meeting of union members on March 16, 2003, which violated the rules of evidence, and by misunderstanding the legal principles as to occupational breach of trust, which affected the conclusion of the judgment.

4. 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 Ji-hyung (Presiding Justice)