[1] The case holding that Article 1 (1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents applies to the association head of a reconstruction association which completed corporate registration pursuant to Article 10 of the Addenda to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents after completing the establishment requirements and procedures under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, since the reconstruction association which completed corporate registration after completing corporate registration

[2] In a case where the primary and preparatory claim for the application of the non-conforming applicable provisions of law to the same facts is made, whether the primary charges are included in the subject matter of the appellate trial in the case where only the defendant was found guilty (affirmative)

[3] In a case where the prosecutor primarily indicted the offering of a bribe and the offering of a bribe as a preliminary offering of a bribe, the case reversing ex officio the part concerning the primary charges of giving a bribe, in which the appellate court found the Defendant not guilty of the part concerning the offering of a bribe, and found the Defendant guilty of the part concerning the offering of a bribe, on the ground that the primary charges are also included in the primary charges subject to

[1] The case holding that Article 10 of the Addenda to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 6852 of Dec. 30, 2002) of the Housing Construction Promotion Act applies to the president of the reconstruction association, which completed the registration of corporation pursuant to Article 10 of the Addenda to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 6852 of Dec. 30, 2002), since the reconstruction association which completed the registration of corporation after meeting the requirements and procedures for the establishment under the Act on the Maintenance and Improvement of

[2] The effect of an appeal against a part of the original facts charged lies in the remainder of the facts charged, and where the application of the applicable provisions of Acts which cannot be compatible with each other with the same facts is primarily and reservely sought, it is acknowledged that only the conjunctive facts charged was guilty and the appeal is also included in the primary facts charged, even though only the defendant appealed.

[3] In a case where the prosecutor primarily indicted the crime of offering of a bribe and the crime of offering of a bribe in preliminary embezzlement, the case reversing ex officio the part concerning the primary charge of a crime of offering a bribe where the appellate court found the defendant not guilty of the charge of offering a bribe and found the defendant guilty of the charge of offering a bribe in breach of trust, on the ground that the first charge of a preliminary charge is also included in the subject matter

[1] Articles 18(2) and 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Articles 3 and 10 of the Addenda to the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents ( December 30, 2002) / [2] Article 342 of the Criminal Procedure Act / [3] Article

Defendant 1 and one other

Defendant 2 and one other

Attorney Park Hong-soo (Korean)

Seoul High Court Decision 2005No2492 Decided January 20, 2006

The part of the lower judgment against the Defendants is reversed, and the case is remanded to the Seoul High Court.

1. We examine the prosecutor's grounds of appeal on Defendant 1.

A. The Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the “Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”) enacted by Act No. 6852 on December 30, 2002 is an Act prepared pursuant to criticism that the former Act and subordinate statutes were not effectively regulating various public improvement projects, such as redevelopment and reconstruction projects, with a large need to properly coordinate and control the interests of the majority parties, and includes the formulation of uniform and systematic procedures by organizing and integrating the laws and regulations related to various improvement projects, while strengthening the regulations thereon, thereby enhancing and supplementing the public nature and transparency of improvement projects. A reconstruction project under the former Housing Construction Promotion Act (wholly amended by the enforcement of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents) was all deleted (Article 18(1) of the Addenda to the Act on the Maintenance and Improvement of Urban Areas

In order to ensure the continuous progress of a reconstruction project implemented under the provisions related to reconstruction of the former Housing Construction Promotion Act at the time of the enforcement of the Act (Article 3 of the Addenda of the Act). In addition, the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions in detail prepared individual provisions that recognize the formation, safety diagnosis and determination of rebuilding permission, the selection of the contractor, and the approval of the project plan pursuant to the former Housing Construction Promotion Act as taking the relevant procedures under each Act (Articles 7(2), 8, 9, and 12 of the Addenda of the Act). In addition, the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions as a corporate association under the former Housing Construction Promotion Act by registering the association with the approval of the establishment of the association under the former Housing Construction Promotion Act (Article 10 of the Addenda of the Act). In addition, in recognition that it is necessary to strengthen regulations on the officers of the reconstruction association under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions in order to prevent serious disputes and damages arising from various acts related to reconstruction projects, executives of the Housing Association shall be deemed public officials (Article 8(4).

Meanwhile, according to the evidence duly admitted by the court below, it is recognized that Defendant 1, who was the head of the association, was a reconstruction association with the authorization of establishment under the former Housing Construction Promotion Act on August 28, 2000, selected a city construction project after the resolution of the general meeting, and continued to conduct the business of a reconstruction project on July 30, 2003 and Defendant 1 received KRW 300 million from Defendant 2, a construction business operator, in relation to the subcontracting of the reconstruction project on February 14, 2005, after the implementation of the Urban Improvement Act.

According to the relevant provisions of the Urban Improvement Act and the above facts of recognition, it is clear that the apartment reconstruction association of the apartment is regarded as a corporate reconstruction association as stipulated in the Urban Improvement Act. Thus, Defendant 1, the president of the said reconstruction association, cannot be exempt from the application of the provision of the Article of the Public Officials.

B. The lower court premised on the premise that it should be recognized as having performed activities as a cooperative under the Act on the Improvement of Urban Areas to be recognized as a reconstruction association as stipulated under the Act on the Improvement of Urban Areas and Dwelling Conditions, and determined that, inasmuch as (i) apartment reconstruction association did not implement a reconstruction project at the time of the implementation of the former Housing Construction Promotion Act and (ii) it did not implement a reconstruction project in accordance with the procedures stipulated under the above Act, and (ii) it did not constitute a reconstruction association as stipulated under the Act on the Improvement of Urban Areas and Dwelling Conditions, and (iii) implemented a reconstruction project in accordance with the general building construction procedure after obtaining a building permit under

However, we cannot agree with the above determination by the court below for the following reasons.

A reconstruction association which has completed the establishment requirements and procedures prescribed by the Urban Improvement Act and completed the registration of a juristic person, is naturally recognized as a reconstruction association under the Urban Improvement Act, and it is not recognized as a reconstruction association prescribed by the Urban Improvement Act only when specific partnership activities are conducted pursuant to the Urban Improvement Act. From the perspective of the original judgment, a reconstruction association which has completed the registration of a juristic person after meeting the establishment requirements and procedures prescribed by the Urban Improvement Act can be concluded as having not yet been recognized as a reconstruction association under the Urban Improvement Act before commencing the specific partnership activities. In addition, it may cause damages to the other party or members who trade with the reconstruction association under the Urban Improvement Act, as it is not clear whether it can be recognized as a reconstruction association under the Urban Improvement Act only when going to engage in certain activities. Meanwhile, if the apartment reconstruction association is not a reconstruction association under the Urban Improvement Act, there is no law that can regulate the reconstruction project of the said reconstruction association, and thus, it cannot avoid the legal gap.

In addition, according to the evidence duly admitted by the court below, the construction permit of an apartment reconstruction association in the name of a member of the association was to avoid regulation on the project plan under the former Housing Construction Promotion Act, and even thereafter, it is recognized that the association continued to undertake the reconstruction project as the business of the association through the reconstruction association association's agency, so there is a high need to apply the Urban Improvement Act to the fair and transparent implementation of the reconstruction project. (Name omitted) If the apartment reconstruction association is dissolved or the association is registered as a juristic person under Article 10 of the Addenda of the Urban Improvement Act without the registration of a juristic person under Article 10 of the Addenda of the Urban Improvement Act, it is difficult to complete the reconstruction project as an individual member of the association (actually, it is difficult to complete the reconstruction project as a whole through this procedure). However, as long as the reconstruction association is established under the above Act by completing the registration in accordance with the procedure stipulated under the Urban Improvement Act, the above Act cannot be exempted.

C. Ultimately, the court below found Defendant 1 not guilty of the primary charges of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) against Defendant 1 on the ground that Article 1’s constructive provision cannot be applied to Defendant 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes on the grounds as stated in its reasoning is an unlawful act that affected the conclusion of the judgment by misapprehending the legal principles on the scope of application of the public official’s constructive provision under the Act on the Aggravated Punishment, etc. of Specific Crimes. Therefore, the judgment of the court below on

2. Before determining Defendant 2’s grounds of appeal, this paper examined ex officio.

The effect of a complaint on part of the primary and preliminary facts charged lies on the remainder of the facts charged, and in cases where the application of the applicable provisions of Acts that cannot be compatible with each other with the same facts is primarily and reservely sought, it shall be deemed that only the preliminary facts charged is guilty and only the defendant appealed on the part, the primary facts charged shall also be included in the subject of a trial on appeal.

According to the records, the prosecutor stated in this case the facts charged that Defendant 2, the construction business operator, delivered KRW 300 million to Defendant 1, the president of the apartment reconstruction association, along with illegal solicitation in relation to the subcontract for construction work related to the association's business, and sought punishment for the offering of a bribe and the offering of a bribe in preliminary case. For this reason, the court below found Defendant 1 not to be subject to the provision of a public official's legal fiction as to the offering of a bribe, and found Defendant 2 guilty only for the crime of giving a bribe, which is the primary charge against Defendant 2, and found Defendant 2 guilty.

According to the above legal principles and the above facts, even if an appeal was filed against the conjunctive facts charged by Defendant 20,00, the part of the crime of offering of bribe, which is the primary facts charged against the above defendant, is also deemed to be included in the subject of the judgment of this court. However, as seen in the part of the prosecutor's grounds of appeal as to Defendant 1's grounds of appeal, the judgment of the court below that Defendant 1 does not apply the public official's constructive provision to Defendant 1 is erroneous by misapprehending the legal principles as to the scope of application of public official's constructive provision under the Urban Improvement Act, which affected the conclusion of the judgment. Thus, without examining the grounds of appeal as to Defendant 2's ancillary facts, the judgment of the court below on the ancillary facts

3. Conclusion

Therefore, since the primary and preliminary facts charged against the Defendants cannot be maintained as they are, the part of the judgment of the court below against the Defendants shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yang Sung-tae (Presiding Justice)