2017No1598 Violation of the Act on the Maintenance and Improvement of Urban Areas

A

Both parties

Oral transfer (prosecution) and sexual Jin-young (public trial)

Law Firm B, Attorney C

Seoul Northern District Court Decision 2016 High Court Decision 2269 Decided July 19, 2017

June 1, 2018

All appeals filed by prosecutors and defendants are dismissed.

1. Summary of grounds for appeal;

(a) Inspection (unfair shape);

The punishment of the court below against the defendant (the fine of 800,000 won) is too unfluent and unfair.

B. Defendant

1) Legal principles

As to the facts charged in this case, the service contract of this case was carried forward of the Urban Planning (Modification) cost and reserve fund when it is necessary to modify the urban renewal acceleration plan as stipulated in the association budget in 2014. Thus, it constitutes a matter of budget as stipulated in Article 24 (3) 5 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 13508, Sep. 1, 2015; hereinafter referred to as the "former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents"). Furthermore, since the service contract of this case was concluded to invalidate when it is not approved by the association at the time of the contract, it does not constitute a "contract to become a partner" as stipulated in Article 85 subparagraph 5 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

2) Unreasonable sentencing

The above punishment of the court below against the defendant is too unreasonable.

2. Judgment on the Defendant’s assertion of misapprehension of legal principles

(a) Relevant legal principles;

In addition to the matters stipulated in the budget under Article 24 (3) 5 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, the term "contract which becomes a partner's burden" means a contract under which a partner bears a burden on expenses by paying or paying money outside the items and scope set forth in the budget of the partnership (see Supreme Court Decision 2010Da105112, Apr. 28, 201). The term "budget" refers to "income and expenditure plan for one fiscal year prescribed in the articles of association of the association". If an association fails to meet such budget requirements, the term "budget" cannot be deemed as "budget prescribed in Article 24 (3) 5 of the same Act, even if the amount of expenditure for the rearrangement project cost, which is expenses incurred in the rearrangement project in the course of promoting the rearrangement project, is limited to the budget of the general meeting (see Supreme Court Decision 2014Do8096, May 14, 2015).

In addition, even if it is difficult to make a prior decision at a general meeting on the specific contents of all the affairs promoted by a cooperative, in cases where a cooperative enters into a contract to become a partner other than those stipulated in the budget, the purpose and content of the contract to be promoted by the general meeting in advance, and the degree of the burden to be borne by the union members thereby, shall be outlined and decided by the general meeting (see Supreme Court Decision 2009Do14296, Jun. 24, 20

B. Determination

In full view of the following circumstances that can be recognized by the evidence duly adopted and investigated by the court below, the service contract of this case constitutes "a contract which becomes a partner's burden in addition to the matters stipulated by the budget under Article 24 (3) 5 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents" and therefore, the court below's judgment that found the defendant guilty as to this part of the facts charged is justified,

1) Article 32(1) of the articles of association of the instant cooperative provides that “The accounts of the cooperative shall be from January 1 to the end of December each year.” The Defendant was only subject to a resolution on the budget bill of the cooperative in 2014 at the ordinary general meeting of the cooperative in May 16, 2014, and the Defendant did not separately set the budget for 2015 because it did not hold a general meeting in 2015. Nevertheless, the Defendant concluded a service contract on March 23, 2015, without a separate resolution of the general meeting.

The Defendant asserted that, at the time of the resolution on the budget bill of 2014, the project cost of KRW 250 million was set out in the budget as well as KRW 3 billion in preparation for an increase or decrease in the amount, and further, in 2015, the budget was not established in 2014, the Defendant may execute the above budget for the project cost set forth in the budget of 2014 in accordance with the quasi-budget provisions. However, for the following reasons, the conclusion of the instant service contract can be evaluated as an act of bearing the obligation beyond the items and scope set forth in the budget of the instant association, and the above argument by the Defendant is without merit.

① A budget bill for the year 2014, passed at the ordinary general meeting of May 16, 2014, which was approved at the general meeting of shareholders on May 16, 2014, is set at KRW 250,000,000 as urban planning (revision) cost when necessary, and KRW 3,00,000 as reserve fund. However, no budget has been established for the year 2015, and the service price stipulated in the instant service contract also reaches KRW 450,00,000.

② Although the budget bill of the year 2014 was set at KRW 3 billion, approximately KRW 1/8 of the total budget amounting to KRW 2.5 billion among the total budget amount, it is difficult to estimate the degree of the burden of members under each individual service contract to be concluded later solely on the basis that the reserve fund was set at a comprehensive basis for the difference arising in the course of contract or business operation. Moreover, since the reserve fund is aimed at appropriating funds for any expenditure other than the budget unforeseeable in advance within the limit of one fiscal year or any expenditure exceeding the budget, the reserve fund remains within the budget in the next fiscal year, and it is difficult to view that the instant service contract was an item that could not be included in the project cost at the time of the aforementioned budget to be a outlined item to the extent that the expenditure would not have been included in the project cost at the time of the aforementioned budget. If the purpose of Article 85 of the former Act is to directly affect the legislative intent and operation of the association members’ rights and obligations, it can also be considered that the legislative purpose of Article 8 of the former Act is likely to directly affect the legislative intent.

③ In light of the fact that the purpose, structure, and operating principles of housing redevelopment and consolidation projects temporarily existing for the purpose of a specific rearrangement project by the State or a local government are different, even without any express provision, the quasi-budget system under the financial management of the State or a local government can not be applied as a matter of course to the operation of a housing redevelopment and consolidation project association, even without any express provision. Even if the defendant complies with the Seoul Special Metropolitan City Improvement Project Association, etc., which asserts that the application or application by analogy to the association of this case is applied mutatis mutandis, the so-called quasi-budget may be executed in accordance with the previous year’s budget only where the budget for the corresponding year is not established before the beginning of the fiscal year due to unavoidable reasons, and the so-called quasi-budget can be executed in accordance with the previous year’s budget and shall undergo prior resolution by the board of representatives on the execution of quasi-budget (Article 18(1) and (4)). However, just because the defendant asserts in this case, it cannot be deemed that there exists any inevitable reason for failure to

④ Meanwhile, even if the general meeting decided to delegate the selection and contract of the collaborative company for the implementation of the project at the time of the general meeting on May 16, 2014, it is merely a delegation of detailed matters within the scope of the budget, etc. set forth in the above general meeting’s resolution within the scope of 2014, and it is difficult to view it as delegation to the board of directors as a matter of course regarding contracts,

2) Furthermore, the Defendant prepared a separate statement of performance on the day of the instant service contract and prepared a separate statement of performance, and the instant service contract becomes effective later after resolution or approval at the annual meeting of D, and if it fails to obtain the above resolution, it appears that the above service contract becomes null and void and no liability is imposed on the instant association. However, the conclusion of the contract, other than those stipulated in the budget without the resolution of the general meeting, is void in principle regardless of the agreement, regardless of the agreement (see, e.g., Supreme Court Decisions 200Da6108, Mar. 23, 2001; 2009Do14296, Jun. 24, 2010). Furthermore, the above circumstances should not be considered in determining the establishment of this crime. Furthermore, in light of the fact that the content of the service payment itself of the instant service contract and the conclusion and validity of the contract, and that it is highly likely that the contract or the instant association will normally be performed in accordance with the agreement.

3. Determination on each of the grounds for unfair sentencing by prosecutors and defendants

We also examine the arguments of unfair sentencing by prosecutors and defendants.

In a case where there is no change in the conditions of sentencing compared with the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion, it is reasonable to respect it (see Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

Based on the above legal principles, there is no change in the conditions of sentencing compared with the court below since new data on sentencing have not been submitted in the trial, and considering the factors of sentencing revealed in the proceedings of the pleading in this case, the above sentencing of the court below against the defendant is too heavy or it is difficult to view that the court below exceeded the reasonable scope of discretion because it is too heavy. Accordingly, both the prosecutor and the defendant's assertion are without merit.

4. Sub-committee

Therefore, since both the prosecutor and the defendant's appeal are without merit, all of them are dismissed under Article 364 (4) of the Criminal Procedure Act, and it is so decided as per Disposition (However, pursuant to Article 25 (1) of the Regulations on Criminal Procedure, the part of the "Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents" in the item of "the relevant Act on the Improvement of Urban Areas and Dwelling Conditions for Residents" as the "Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 13508, Sep.

Judges Lee Do-young

Judges Han Han-chul

Judges Gangnam-gu