(영문) 대법원 2014.11.13.선고 2013도4316 판결

The conviction part of the judgment below is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court.

Reasons

The grounds of appeal are examined.

1. With respect to the violation of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (1) due to the appointment of officers of the association without a general meeting resolution, the principle of clarity derived from the principle of no punishment without the law refers to what is intended to punish law and what kind of punishment can be predicted, and it clearly provides the elements of punishment so as to enable them to determine their acts accordingly. However, it is not necessary to define all the elements of punishment as simple descriptive concept, and even if a person with sound common sense and legal sentiment uses the concept of supplementary interpretation of judges somewhat broad, it is not contrary to the principle of no punishment law if it is possible for him to know the protected legal interest of the punishment law in question and the protected legal interest of the punishment law in question and the kinds and degree of punishment in question and it is not contrary to the principle of no punishment without the law. Whether a certain legal norm is clear or not can be interpreted in a way that allows a criminal to know the meaning of the law in question, and whether it can be reasonably interpreted or excluded from the legislative purpose of the law.

In addition, Article 24 (3) 8 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Areas and Dwelling Conditions for Residents”) provides that “the appointment and dismissal of officers of an association shall undergo a resolution of a general meeting.” Article 85 subparagraph 5 of the same Act provides that “An association’s arbitrary act of promoting a project under each subparagraph of Article 24 (3) without undergoing a resolution of a general meeting under Article 24 shall be punished. Even if an association’s officer is appointed and dismissed through a resolution of the general meeting formally, if there is a defect in the absence of resolution or invalidation of the general meeting, the appointment and dismissal of the officers of an association can be deemed as without undergoing a resolution of the general meeting unless there is a special reason (see Supreme Court Decision 2008Do10826, Mar. 12, 2009). The lower court, on the grounds stated in its reasoning, determined that an act of appointing an officer of an association under Article 24 (3) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Areas and the Association without obtaining consent from a majority of the Act.

2. As to the violation of the Act on the Maintenance and Improvement of Urban Areas due to the appointment of representatives without a general meeting resolution, this part of the grounds of appeal is that the appointment of 11 representatives by the council of representatives of the instant association around July 7, 2010 constitutes a substitute appointment of representatives, and thus, the act of appointing 11 representatives by a resolution of the board of representatives without a general meeting resolution does not constitute a violation of Article 85 subparag. 5 and Article 24(3)12 of the Act.

However, Article 25(2) of the Act on the Maintenance and Improvement of Urban Areas and Article 34(1)2 and Article 35(2) of the Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas provide that matters concerning the appointment and dismissal of representatives shall be decided by a general meeting where the board of representatives is not authorized to act on behalf of the board of representatives, but it excludes the appointment of a substitute for a person who

In light of the record, it is unclear whether the appointment of a representative at the board of representatives was replaced by a person who was vacant during his/her term of office on July 7, 2010. However, even if the appointment of a representative was replaced by a substitute during his/her term of office, the record reveals that the articles of association of the instant association do not have any provision regarding the appointment of a representative for which the board of representatives acts as an agent by the board of representatives. Accordingly, the appointment of a representative was made without any provision on the grounds of the articles of association, and therefore, it cannot be deemed a legitimate appointment as agent for the resolution of the general meeting.

Therefore, the lower court’s conclusion that found Defendant guilty of this part of the facts charged is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the validity of appointment of representatives of housing redevelopment and maintenance companies

3. As to the violation of the Act on the Maintenance and Improvement of Urban Areas due to the amendment of the management and disposition plan which did not go through the general meeting resolution (1) on November 13, 2009, the lower court rejected the Defendant’s assertion that the board of representatives of the instant association made a resolution on July 16, 2010 on the method of disposal of reserved land to the public sale of the reserved land and the development recompense land by the public sale at the general meeting of the general meeting, on the premise that it constitutes a modification of the management and disposition plan, under the premise that the resolution on the method of disposal of reserved land by the board of representatives of the instant association on July 16, 2010 constitutes a modification of the management and disposition plan, which constitutes a minor modification of the management and disposition plan and thus does not require the resolution of the general meeting.

Article 24(3)10 of the Act on the Maintenance and Improvement of Urban Areas provides for the formulation and alteration (excluding minor modifications) of a management and disposal plan as the resolution of the general meeting, and Article 25(2) of the Act on the Maintenance and Improvement of Urban Areas and Article 35 subparag. 1 of the Enforcement Decree of the Act provides that the formulation and alteration of a management and disposal plan shall not be performed by the board of representatives. Article 48(1)8 and (3) of the Act on the Maintenance and Improvement of Urban Areas and Article 50 subparag. 3 of the Enforcement Decree of the Act stipulate the method of disposal in reserved land as one of the matters to be determined by a management and disposal plan. However, the Act that cannot be performed by the board of representatives does not prohibit a general meeting from adopting a plan on behalf of the general meeting to the extent that it does not change the method of disposal in reserved land stipulated by

27. See Supreme Court Decision 2001Du1021 Decided 27.

According to the records, the management and disposal plan of the association of this case stipulates that six households of multi-family housing newly constructed as reserved land for the rearrangement project of this case shall be the price calculated by calculating the arithmetic mean of the values appraised by at least two appraisal business operators (the price under the National Housing Fund Operation and Management Regulations for the apartment housing supported by the National Housing Fund) and that the association of this case shall determine the sale price as the priority right holder and the person other than those who meet the qualification requirements for owners such as land under the Act on the Maintenance of Urban Areas and Dwelling Conditions for Urban Areas, or the Ordinance on the Maintenance of Urban Areas and Dwelling Conditions for Urban Areas and Dwelling Conditions for Urban Areas and Dwelling Conditions for Residents shall be subject to the decision of the general meeting. The association of this case shall be subject to Article 27 of the former Ordinance on the Maintenance of Urban Areas and Dwelling Conditions for Residents (amended by Seoul Special Metropolitan City Ordinance No. 4824, Jul. 30, 2009). Meanwhile, the association of this case shall not

Therefore, the fact that the reserved land in this case and the disposition of the land allotted by the authorities in recompense for development outlay do not constitute an alteration of the management and disposal plan, and the fact that the sale price is determined at the price calculated by calculating the arithmetic mean of the values appraised by two or more appraisal business entities, the lower court should have deliberated and determined whether the resolution by the board of representatives of the instant association to dispose of the reserved land above the price constitutes an alteration of the management and disposal plan.

(3) Nevertheless, without examining this point, the lower court found the Defendant guilty of the instant facts charged on the ground that the resolution of the board of representatives on the method of disposing of reserved land constitutes a modification of the management and disposition plan, and erred by misapprehending the legal doctrine on the modification of the management and disposition plan to be resolved at the general meeting under the Urban Improvement Act, thereby failing to exhaust

4. (1) In regard to the violation of the Urban Improvement Act due to the act of concluding a contract to become a partner without a resolution of the general meeting, except as otherwise provided in the budget, the summary of the facts charged is as follows:

When approving the initial management and disposal plan of the instant association, the budget of KRW 6,710,00 in the traffic impact assessment expense item, KRW 22,407,00 in the registration expense item, KRW 400,000 in the registration expense item, or KRW 400,000 in the registration expense item, but the amount already used for each item exceeds the budget amount set for each item, or exceeds the amount set for any change in the existing amount of use or the new contract amount. However, the Defendant, the president of the instant association, as the head of the instant association, entered into a traffic impact assessment change contract (the total service amount of KRW 2,4 million) on December 1, 2008 and June 7, 2009; and the eco-friendly building environmental planning contract (the service amount of KRW 2,4,00,000 in the service amount) on February 20, 209;

6. 12. By entering into a separate agreement on the law firm for preservation and registration (a service amount of KRW 310 million) and, until that time, up to that point, KRW 18,700,00 in total as traffic impact assessment costs, KRW 48,807,00 in total, and the registration cost, KRW 433,017,97 in total, and KRW 971 in excess of the scope set out in each budget. This is a contract to become a burden on union members in addition to the matters set forth in the association’s budget, and such a contract is subject to prior resolution at a general meeting. However, the Defendant, despite the fact that it is subject to prior resolution at a general meeting.

11.3. At an ordinary general meeting of shareholders, the above contract was already concluded and the ratification was made only after the payment of the money was made, and the contract was concluded which will become a partner's burden without going through a resolution of the general meeting.

(2) The lower court found the Defendant guilty of this part of the facts charged on the grounds that the Defendant, prior to the general meeting, revealed in advance the purpose and content of the agreement to be promoted by the association, and the degree of the burden to be borne by the association members, and without going through the resolution of the general meeting, concluded a contract to be borne by union members, other than those stipulated in the association’s budget, was found to have been concluded. (3) The lower court’

In addition to the matters stipulated in the budget under Article 24 (3) 5 of the Urban Improvement Act, the term "contract that becomes a partner's burden" means a contract that imposes a burden on the expenses of the association members by paying or discharging money outside the items and scope set forth in the budget of the association (see Supreme Court Decision 2010Da105112, Apr. 28, 201). On the other hand, the term "contract that becomes a partner's burden other than those set forth in the budget" stipulates that a general meeting shall go through a resolution, and Article 85 (5) 5 of the Urban Improvement Act provides that the term "contract that becomes a partner's burden" should be punished for the officers of the association who have concluded the contract other than those set forth in the budget without the resolution of the general meeting, because it has a direct influence on the rights and duties of the association members, so that the intent of the association members can be reflected in the budget. Thus, where a contract is concluded in addition to the matters set forth in the budget, the purpose and contents of the contract to be promoted in advance, and the degree of the general meeting shall be decided (see 20.

However, even according to this part of the facts charged, traffic impact assessment expenses, eco-friendliness certification expenses, and registration expenses of the instant association are prepared for each item, and the budget is allocated by each item. While examining the evidence adopted and examined by the court below, it does not seem to be the circumstance that the general meeting, while formulating the above management and disposal plan, by specifying the purpose and content of the contract by each item as above and the degree of the burden to be borne by the union members, and it does not go through the resolution of the general meeting. Therefore, it is not a matter that the defendant cannot be deemed to have concluded a contract that is to be borne by the union members beyond the items prescribed in the budget, but it is only a matter whether the contract exceeds the scope prescribed in the budget. However, according to the records, the defendant asserted that the contract amount exceeding the budget amount of each item was executed from the reserve fund, and that the defendant set the amount from the management and disposal plan to the reserve fund to the reserve fund to the amount of KRW 1,717,246,000. Therefore, if each of the above contracts was lawfully executed from the reserve fund.

Therefore, the court below should have deliberated on whether the instant association limited the purpose of use of the reserve fund by the resolution of the articles of association, the general meeting, or the board of representatives, whether the expenditure of each of the above contract amount is permitted as a limited purpose of reserve fund, whether each of the above contract amount remains, and whether each of the above contract amount has been disbursed by executing the reserve fund. Based on this, the court below should have determined on the basis of whether the Defendant spent money or had a debt by deviating from the items and scope set forth in the budget of the association without the resolution of the general meeting.

Nevertheless, the lower court found the Defendant guilty of this part of the facts charged solely on the grounds indicated in its holding, and thus, the lower court erred by misapprehending the legal doctrine on the scope of a contract to be resolved at a general meeting under the Urban Improvement Act, thereby failing

5. As to the defamation caused by false facts, the lower court found the Defendant guilty on this part of the charges, on the grounds as indicated in its reasoning, on the ground that the Defendant: (a) prepared a printed article expressing publicly false facts; and (b) delivered it to members by mail.

Examining the records in accordance with the relevant legal principles, the judgment of the court below is just, and there is no error in the misapprehension of the legal principles as to the grounds for the denial of alleged facts, defamation, or the violation of the principle of free evaluation of evidence against logical and empirical rules.

6. Conclusion

Therefore, the judgment of the court below that modified the management and disposal plan without the resolution of the general meeting and concluded a contract that imposes a burden on the union members in addition to the acts of modifying the management and disposal plan without the resolution of the general meeting, and the violation of the Act on the Maintenance and Improvement of Urban Areas due to the act of concluding the contract, and the concurrent crimes under the former part of Article 37 of the Criminal Act, all convictions, including the remaining convictions, and the case is reversed and remanded