Defendant

Prosecutor

Mail Manum

Attorney White-Ba

Seoul Central District Court Decision 201Da1467 decided August 10, 201 (Separation)

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

In light of the fact that a partnership house can be divided into members and non-members, and that a non-member’s act of disturbing housing supply order also needs to be punished, there is no ground to interpret that the case of punishment under Article 96 subparag. 1 and Article 39(1) of the Housing Act is limited to “the case of transferring a legitimate status that can be purchased in the qualification of a regular member”. Nevertheless, the lower court punished the transfer of the status as a legitimate member under Article 39(1) of the Housing Act, and the Defendant acquitted the Defendant on the charges of this case on the ground that he is not a legitimate member under the Housing Act, thereby adversely affecting the conclusion of the judgment by misapprehending the legal doctrine.

2. Determination on the grounds for appeal

A. The judgment of the court below

The court below held that Article 39 (1) 1 of the Housing Act provides the status of a legitimate housing association established pursuant to Article 32 of the Housing Act to be supplied with the housing legitimately, and its language and text refer to the status of a lawful and effective occupancy in the housing, and Article 39 (2) of the Housing Act provides that the Minister of Land, Transport and Maritime Affairs or the project undertaker may invalidate the "Status" under the premise that the "Status" under Article 39 (1) 1 of the Housing Act is valid. In light of the above, the court below held that "the status of a person who can be supplied with the housing pursuant to Article 32" means the status of a member of the housing association established lawfully after obtaining authorization for establishment or making a report, and that the defendant can not be seen as a legitimate member of the housing association or the defendant's right to purchase the apartment house under the name of the non-indicted 1, a member of the housing association or the defendant's right to purchase the housing directly from the non-indicted 3, a member of the housing association or the defendant's right to purchase the housing association.

B. Judgment of the court below

Article 96 Subparag. 1 of the Housing Act is to punish a person who violates the provisions of Article 39(1) of the Housing Act. Article 39(1) of the Housing Act provides, “No person shall transfer or acquire, or mediate any of the following certificates or positions to acquire, a house constructed and supplied under this Act or to have another person acquire it, and no person shall acquire, or have another person acquire, a certificate or status constructed and supplied under this Act or have another person acquire it, by fraudulent or other unlawful means,” as prescribed in subparagraph 1, “the status eligible to acquire a house pursuant to Article 32,” “redeemable housing bonds pursuant to Article 69,” “certificate of occupants’ savings pursuant to Article 75,” “other certificates or status eligible to acquire a house” pursuant to subparagraph 4, and “a person who already violates the provisions of Article 39(1) of the Housing Act or a certificate of confirmation of the relocation of a house issued by the head of the Gu” pursuant to Article 43(1)4 of the Enforcement Decree of the Housing Act or “a certificate of the relocation measures” pursuant to be listed in the following subparagraphs 1 and 3(2).

On the other hand, Article 32 of the Housing Act requires the authorization of the head of the competent Si/Gun/Gu in the case of the establishment, modification, or dissolution of a housing association, and the housing association can supply housing to its members first, and the method and procedure of the establishment of the housing association, and the qualification criteria for its members are prescribed by Presidential Decree.

As above, Article 39 (1) 1 of the Housing Act provides the status of a housing association established lawfully pursuant to Article 32 of the Housing Act to be supplied with a house. Each subparagraph of Article 39 (1) of the Housing Act and each subparagraph of Article 43 (1) of the Enforcement Decree of the Housing Act shall be deemed to be a limited list, not an example, but a limited list. The "certificate" stipulated in each of the above subparagraph shall be deemed to be only an official document or a certificate with public trust in the equivalent degree, and it shall be interpreted to mean the status of "the status of being supplied with a house." Article 39 (2) of the Housing Act provides that "the status of a housing association" as provided in Article 39 (1) of the Housing Act shall be deemed to be effective, and where a housing association violates the above Article 39 (1) of the Housing Act, the Minister of Land, Transport and Maritime Affairs or a project undertaker shall be deemed to be invalid, and the interpretation of the housing association's status to be lawfully supplied with a housing association member's status under Article 39 (1) of the Housing Act.

However, according to the records, Nonindicted Co. 4, on July 5, 2007, entered into an agency contract with ○○○○○○○○○ Housing Association (hereinafter omitted) on the implementation of its project in Dongjak-gu Seoul (hereinafter referred to as “○○○○○○○○○ Housing Association”). Nonindicted Co. 3, the representative director of Nonindicted Co. 4, sold the above apartment tickets owned by Nonindicted Co. 4 around March 2008 and received KRW 69,624,00 from the Defendant as contract deposit, etc. The Defendant decided to resell the above apartment ownership to Nonindicted Co. 1 through brokerage of Nonindicted Co. 5, 6, and 7, and the fact that the Defendant received KRW 169,624,00 in aggregate from Nonindicted Co. 1, 208 and received KRW 160 for the purpose of acquiring it from ○○○○○ Housing Association without acquiring it from ○○○○○○○ Housing Association. Furthermore, the following circumstances, which are acknowledged by the records, including the fact that the right to sell out apartment tickets at 1 to ○○○ Housing Association.

Therefore, the court below's decision of not guilty of the facts charged of this case is just and it is not erroneous in the misapprehension of legal principles as alleged in the ground of appeal by the prosecutor, which affected the conclusion of the judgment. The prosecutor's above assertion is without merit.

3. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Dong-hee (Presiding Judge)