2017Do13252 Embezzlement

A

Defendant

Law Firm B, Attorney C

Busan District Court Decision 2017No439 Decided August 11, 2017

January 14, 2021

The judgment below is reversed, and the case is remanded to Busan District Court.

The grounds of appeal are examined.

1. Summary of the facts charged in this case

The summary of the instant facts charged is as follows.

A. The Defendant was a person who had been in charge of the duties of the president of the Women’s Association in the instant apartment complex located in Busan East-gu from around 1997 to December 2014.

According to the Housing Act, the Enforcement Decree of the Housing Act, and the management rules of the apartment in this case, apartment miscellaneous income shall be disposed of within 2/100 of the total budget of the management expenses for the relevant year as reserve funds, and the remaining balance shall be accumulated as long-term repair appropriations, and the head of the management office, etc. who is the management entity, shall be managed by the head of the management office, etc., and the Women's Association shall not participate in the execution of the budget,

Nevertheless, the Defendant, at the above apartment girls association, has managed apartment miscellaneous revenues in accordance with the existing practices, such as expenses for disposal of recycled products, premium for teas, bulletin board advertising revenue, and profit from the bar association, inception, intended to consume such revenues for the purpose of operating expenses of women's association. From December 7, 2010 to December 29, 2014, the Defendant arbitrarily consumed and embezzled the apartment miscellaneous revenues of KRW 71,674,130 (hereinafter referred to as the "miscellaneous revenues in this case"), which were kept for the victims, on a total of 68 occasions from December 7, 2010 to December 29, 2014.

B. The Defendant, at the time he/she was in office as the president of the Women’s Association of this case, was subject to a criminal trial in relation to the case in which he/she was accused of insult and defamation of himself/herself, and the chairman of the instant apartment management committee lost his/her capacity as a representative of the Defendant on the ground that he/she was concurrently holding office as a female member and the representative of the apartment complex, and followed procedures such as filing an application for special election prohibition and provisional disposition in order to prevent any defects in conducting a special election. On January 2015, the Defendant conspiredd with F. G and female members who were appointed to act as the president of the Women’s Association of this case on behalf of the Defendant on the ground that he/she would use the relevant attorney’s

On June 26, 2015, the Defendant: (a) transferred KRW 6,500,000 to the bank account in the name of the Defendant for the purpose of using the attorney’s fees, etc. around that time, and embezzled KRW 6,50,00,00 for the purpose of using the attorney’s fees, etc., which was kept by G and the aforementioned female members for the victim’s apartment; and (b) around July 27, 2015, under the name of the attorney’s fees and fines related to the above defamation case; and (c) the attorney’s fees related to the special election prohibition and provisional disposition.

Accordingly, the Defendant embezzled the total amount of KRW 8,836,300, which was kept in custody for the victim in collusion with F and G members.

2. The judgment of the court below

For the reasons indicated in its holding, the lower court found the Defendant guilty of all the charges of this case on the ground that ① the instant miscellaneous income constitutes miscellaneous income prescribed by the Enforcement Decree of the Housing Act and the Rules on the Management of Apartments of this case, and this constitutes the Defendant’s status as custodian for miscellaneous income as a whole owned by all of the occupants, and ② the instant boys’s membership fees are also deemed as the ownership of all of the occupants, and the status as custodian for

3. Judgment of the Supreme Court

However, the lower court’s determination is difficult to accept for the following reasons.

A. Relevant legal principles

(1) Women’s association is not established as a subordinate organization or subsidiary organization of the council of occupants’ representatives based on relevant laws and regulations or management rules, but is not established as a subordinate organization or subsidiary organization of the council of occupants’ representatives. If a female association acts with a social substance as an organization, such as the association’s rules and officers, and volunteer activities or profit-making activities for the occupants in an apartment, etc., in which it is established, the association shall have the substance of an association which is not a juristic person. In this case, the female association shall be deemed as a self-employed local government with a legal status independent of the council of occupants’ representatives, and the council of occupants’ representatives shall not be deemed differently

(2) Article 55(2) of the former Enforcement Decree of the Housing Act (amended by Presidential Decree No. 25320, Apr. 24, 2014) (amended by Presidential Decree No. 25320, Apr. 24, 2014) which was enforced at the time of the Defendant’s act indicated in the facts charged in the instant case provides that “the revenues accruing from the management of multi-family housing, such as the deposit interest, late payment, and usage fees of incidental facilities and welfare facilities, shall be deemed as miscellaneous revenues.” Article 55-4(1)1(b) of the Enforcement Decree of the amended Housing Act (amended by Presidential Decree No. 27444, Aug. 11, 2016) provides that “the revenues incidental to the management of multi-family housing, such as revenues from the sale of recycled products, usage fees of welfare facilities, etc.” as miscellaneous revenues.

Such miscellaneous income is generated when the management entity manages multi-family housing, and such income should be attributed to all occupants. Thus, all incomes generated from the use and operation of facilities in a multi-family housing complex cannot be viewed as uniformly included in miscellaneous income items stipulated in the Enforcement Decree of the Housing Act and the Management Rules of the apartment complex in this case (see Constitutional Court Order 2018Hun-Ma426, Apr. 23, 2020). It should be viewed that miscellaneous income is included in miscellaneous income items only in miscellaneous income attributable to all occupants among the revenues generated from the use and operation of facilities in a multi-family housing complex.

B. Examining the reasoning and record of the lower judgment, the following facts are revealed.

(1) Around November 1983, the apartment building of this case was completed and occupied, and the council of occupants' representatives was also established around that time.

(2) The Women’s Association of the instant apartment was established around 1984 with the content that, around November 2005, some main owners of the apartment among the occupants voluntarily formed volunteer activities for the occupants, 13 of the occupants were members from among the occupants, and 13 of the members were the president, 2 of the vice-president, 1 of the general secretary, and 1 of the auditor.

(3) From around 1997 to December 2014, the Defendant had been working as the president of the Women’s Association of the instant apartment complex from around 1997 to December, 2014. During the said period, the Women’s Association continued to conduct the disposal and sale of recycled products, the selection and contract of the tenant in the instant apartment complex, the management thereof, the orders for advertising in the bulletin board in the apartment complex and the management thereof, and the activities of holding a boom or a bridge using the place in the apartment complex.

(4) The instant female association has voluntarily disbursed the income acquired from the above management activities of multi-family housing as expenses for elderly care for the occupants, expenses for supporting the college, scholarships, etc. The council of occupants’ representatives has admitted such expenses without any objection to the aforementioned activities and financial management of the female council.

(5) The management rules of the instant apartment (established in December 2004) did not stipulate provisions on the establishment of and support for the Women’s Association, and only stipulated that “standards for the operation of the Women’s Association related to the management of collective housing” as the resolution of the council of occupants’ representatives (Article 23 subparag. 10 of the instant apartment management rules, enacted in December 2004) was stipulated as the resolution of the council of occupants’ representatives (Article 23 subparag. 10 of the instant apartment management rules).

(6) Article 60(2) of the Management Rules of the instant apartment (amended on November 30, 2010 and enforced at the time of the act indicated in paragraph (1) of the instant facts charged) provides that “The net income accrued from the miscellaneous income under Article 55(2) of the former Enforcement Decree of the Housing Act shall be disposed of as reserve funds within the scope of 2/100 of the total amount of the budget for the relevant year in order to appropriate for the expenditure of the insufficient budget under Article 58(1) of the Decree for the shortage of management expenses under Article 58(1) of the Decree.”

C. Examining the above facts in accordance with the legal principles as seen earlier, the following is determined.

(1) From November 2005, the Women’s Association of this case, which was established at least the rules and organized, and continued its social activities, had the substance of an unincorporated association as an association independent of the council of occupants’ representatives. Accordingly, the Women’s Association of this case collected from female members, who are its members, is collectively owned by female members.

(2) In addition, the instant management rules did not stipulate that the income derived from the management activities of female collective housing belongs to the revenue of the council of occupants' representatives, and there was no agreement between female council and the council of occupants' representatives on the reversion of the income to the council of occupants' representatives, barring special circumstances, the instant miscellaneous income arising from the management activities of female collective housing also belongs to the collective ownership of female members, regardless of whether such management activities are legitimate, unless there are special circumstances. The instant miscellaneous income, which is the collective ownership property of female members, shall not be deemed to belong to the council of occupants' representatives, as stipulated by the Enforcement Decree of the Housing Act.

D. Nevertheless, on the premise that the instant female membership fee and the instant miscellaneous income belong to the council of occupants' representatives or collectively owned by all the occupants, the lower court found the Defendant guilty of all the facts charged in the instant case on the ground that the Defendant spent the instant female membership fee and the instant miscellaneous income for purposes other than those prescribed by the law and subordinate statutes. In so doing, it erred by misapprehending the legal doctrine on the elements for establishment of an association which is not a legal entity, the ownership of the income accrued from the management of the female membership fee and the income accruing from the management of the collective housing

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Min You-sook

Justices Kim Jae-hyung

Justices Lee Dong-won

Chief Justice Noh Tae-ok