The meaning of "Chairperson of Promotion Committee", who is the main agent of the crime of violating Article 86 subparagraph 6 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and Article 84-3 subparagraph 5 of the same Act / Whether a person who was a promotion committee vice-chairperson or a promotion commissioner and became the acting chairperson in accordance with the operating regulations on the ground that he/she was the chairperson's attention, etc. is included in "Chairperson of Promotion Committee" under Articles 86 subparagraph 6, 81 (1), 84-3 subparagraph 5 and 14 (2) of the same Act

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. 11580, Dec. 18, 2012; hereinafter “former Act”) and Article 84-3 subparag. 5 of the same Act “Chairperson of the Promotion Committee” means the chairperson of the Promotion Committee established with approval of the head of Si/Gun after obtaining consent of a majority of the owners of land, etc. to establish a maintenance and improvement project association pursuant to Articles 13(2) and 15(1) of the same Act. Thus, the interpretation that a person who becomes the chairperson of the Promotion Committee pursuant to the operational regulations was the vice-chairperson or the promoters of the Promotion Committee, who was the person acting as the chairperson of the Promotion Committee pursuant to the operational regulations, constitutes a “chairperson of the Promotion Committee” as provided for in Articles 86 subparag. 6, 81(1), 84-3 subparag. 5, and 14(2) of the former Act is excessively interpreted in the direction unfavorable to the defendant.

Article 12(1) of the Constitution of the Republic of Korea; Article 1(1) of the Criminal Act; Articles 13(2), 14(2), 15(1), 81(1) and (6), 84-3 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. 11580, Dec. 18, 2012);

Supreme Court Decision 2010Do17145 Decided May 26, 201 (Gong2011Ha, 1348)

Defendant

Prosecutor

Ulsan District Court Decision 2014No197 decided July 25, 2014

The appeal is dismissed.

The grounds of appeal are examined.

1. The interpretation of penal provisions shall be strict, and the interpretation by analogy of the meaning of an express provision to the disadvantage of the defendant is not permitted as it is in violation of the principle of no punishment without the law, and it is also applied likewise to the interpretation of the administrative law in a case where the contents of the administrative law subject to the penal provisions are contents (see, e.g., Supreme Court en banc Decision 90Do1516, Nov. 27, 1990; Supreme Court Decision 2006Do4582, Jun. 29, 2007).

Article 86 Subparag. 6 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (referring to a representative where the owner of a plot of land, etc. executes an urban environment improvement project independently) provides that “The head of a promotion committee or a project implementer (referring to an association’s executives where an urban environment improvement project is implemented independently by the owner of a plot of land, etc.) who fails to disclose the documents and data related to the implementation of an improvement project in parallel with the Internet in violation of Article 81(1) or to comply with the request of its members or owners of a plot of land, etc. for inspection or copy by violating Article 81(6).” Article 81(1) of the former Act provides that “The head of a promotion committee or a project implementer (referring to an association’s executives where an urban environment improvement project is implemented independently by the owner of a plot of land, etc., and a representative where an urban environment improvement project is implemented by the owner of a plot of land, etc.) shall make them public through competitive bidding within 15 days after preparation or alteration of the following the relevant documents and data:

"Chairperson of the Promotion Committee, who is the main agent of the crime of violating Article 86 subparagraph 6 of the former Act and subparagraph 5 of Article 84-3 of the same Act, refers to the chairperson of the Promotion Committee established with the approval of the head of a Si/Gun after obtaining the consent of a majority of the owners of lands, etc. in order to establish a Promotion Committee pursuant to Articles 13 (2) and 15 (1) of the same Act. Thus, the interpretation that a person who becomes the chairperson of the Promotion Committee was the vice-chairperson or the promoters of the Promotion Committee, due to the fact that he/she was the chairperson of the Promotion Committee, constitutes "chairperson of the Promotion Committee" stipulated in Articles 86 subparagraph 6, 81 (1), 84-3 subparagraph 5, and 14 (2) of the former Act in order to extend the scope of punishment to the disadvantage of the defendant, and thus, it cannot be allowed to violate the principle of no punishment without law (see Supreme Court Decision 2010Do17145, May 26, 2011).

2. Based on its stated reasoning, the lower court acquitted the Defendant, who is the acting chairperson of the instant promotion committee, on all the facts charged against the Defendant on the ground that: (a) construing the Defendant to fall under the “chairperson of the promotion committee” as provided by Articles 86 subparag. 6 and 81(1) of the former Urban Improvement Act or the “chairperson of the promotion committee” as provided by Articles 84-3 subparag. 5 and 14(2) of the former Urban Improvement Act by excessively expanding or interpreting criminal laws in the direction unfavorable to the Defendant; and (b) construing

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the interpretation and application of Articles 84-3 subparag. 5 and 86 subparag. 6 of the former Act, or in violation of the rules of evidence.

3. The argument in the grounds of appeal that the defendant selected the non-indicted corporation on behalf of the promotion committee of this case as a management contractor of the non-indicted corporation does not fall under the "chairperson of the promotion committee" as the principal agent of the crime of violating Article 84-3 subparagraph 5 of the former Urban Improvement Act. Thus, the legitimacy of the judgment below does not affect the conclusion of this case. The argument in the grounds of appeal on this part is without merit without further review.

4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)