[1] In a case where a person permitted to enter a usual structure due to the benefit and protection of the law of the crime of intrusion of a structure and requirements for establishment / In a relation with a resident or manager of a structure enters a structure against the explicit or presumed intent of the resident or manager, whether the crime of intrusion of a structure is established (affirmative)

[2] In a case where the council of occupants' representatives of a multi-family housing enters the relevant parking lot against the decision of the council of occupants' representatives although it decided to prohibit a person who is not an occupant, etc. (the outside person) from entering the parking lot and notified the outside person of the fact, whether the crime of intrusion upon a structure is established even if the outside person did not receive specific restraint from the manager at the time of entry (affirmative)

[1] Since the crime of intrusion upon a structure is practically protected by the law, it is established when a structure is intruded against the will of the manager of the structure. Even if a person who has access to a structure is permitted due to the relation with the resident or manager of the structure, if the act of entering the structure is committed against the explicit or presumed will of the resident or manager, then the crime of intrusion upon a structure is established.

[2] Article 43(1), (2), and (8)2, and Article 44(1) and (2) of the former Housing Act (amended by Act No. 13474, Aug. 1, 2015; hereinafter the same shall apply) provides that the council of occupants' representatives established a non-permanent housing management organization’s right to manage multi-family housing against the occupant’s own will; Article 10(1) and (3), 51(1), 52(1), and 57(1) and (3) of the former Enforcement Decree of the Housing Act (wholly amended by Presidential Decree No. 2744, Aug. 11, 2016; hereinafter the same shall apply); Article 10(1) and (4) of the former Enforcement Decree of the Housing Act (amended by Act No. 10655, Jun. 1, 201; 201; hereinafter the same shall apply).

Even if an outside person entered a parking lot with the consent of some occupants, etc., an individual resident, etc. is obligated to comply with the decision on the management of the parking lot within the complex of the council of occupants' representatives, so long as fundamental rights to the parking lot are not infringed. Whether the decision of the council of occupants' representatives prohibiting the outside person from entering the parking lot is an infringement on the essential rights of individual occupants, etc., the determination should be made by comprehensively taking into account the details of the regulations enacted and amended by the council of occupants' representatives regarding the maintenance and operation of the parking lot, the original purpose and purpose of the parking lot, the relationship between the occupant, etc., the relationship between the outside person, etc

[1] Article 319 (1) of the Criminal Act / [2] Article 319 (1) of the Criminal Act, Article 43 of the former Housing Act (Amended by Act No. 13474, Aug. 11, 2015; see Articles 5, 6, and 7 of the current Multi-Family Housing Management Act), Article 44 (see Article 18 of the current Multi-Family Housing Management Act), Article 50 of the former Enforcement Decree of the Housing Act (Amended by Presidential Decree No. 27444, Aug. 11, 2016; see Article 12 of the current Enforcement Decree of the Multi-Family Housing Management Act), Article 51 (see Article 14 of the current Enforcement Decree of the Multi-Family Housing Management Act), Article 52 (see Article 3 of the current Enforcement Decree of the Multi-Family Housing Management Act), Article 57 (see Article 19 of the current Enforcement Decree of the Multi-Family Housing Management Act), Article 11, Article 14 (1 (14 (3) and (1) of the Enforcement Decree of the Multi-Family Housing Act.

[1] Supreme Court Decision 2012Do976 Decided April 12, 2012

Defendant

Defendant

Attorney Lee Lee In-ok

Seoul Eastern District Court Decision 2017No1250 decided November 24, 2017

The appeal is dismissed.

The grounds of appeal are examined.

1. A. Since the crime of intrusion upon a building is the protected legal interest and protection of the law, it is established when a building is intruded against the will of the manager of the building. Even if a person permitted access to the building due to the relation, etc. with the resident or manager of the building, if the act of entering the building is committed despite being contrary to the explicit or presumed intent of the resident or manager, the crime of intrusion upon the building is established (see, e.g., Supreme Court Decision 2012Do976, Apr. 12, 2012).

B.1) Article 43(1) and (2) of the former Housing Act (amended by Act No. 13474, Aug. 11, 2015; hereinafter “former Housing Act”) provides that when a majority of prospective occupants have occupied a multi-family housing, a project undertaker who has built a multi-family housing shall inform the occupants of such fact and request a housing management operator to autonomously manage the multi-family housing or to manage the multi-family housing (Article 43(1) and (2) by entrusting the housing management operator, and the occupants shall constitute a council of occupants’ representatives within three months from the date of such request, and shall determine management methods of the multi-family housing and notify the project operator thereof, and shall report it to the head of the competent Si/Gun/Gu (Article 43(3)), and matters concerning the composition and operation of the council of occupants’ representatives and

Pursuant to Article 43(8)2 of the former Enforcement Decree of the Housing Act (wholly amended by Presidential Decree No. 27444, Aug. 11, 2016; hereinafter “former Enforcement Decree of the Housing Act”), the council of occupants’ representatives shall consist of at least four representatives (hereinafter referred to as “representative of each Dong”) elected according to the constituency prescribed by the rules for collective housing management (hereinafter referred to as “management rules”) under Article 44(2) of the former Housing Act in proportion to the number of households by buildings (hereinafter referred to as “management rules”) and shall be comprised of representatives (hereinafter referred to as “representative of each Dong”) (Article 50(1)); the representative of each Dong shall be elected through the general, equal, direct and secret election of occupants of the constituency among the occupants residing in the relevant collective housing complex for at least six consecutive months after the completion of their resident registration (Article 50(3)); the council of occupants’ representatives shall recommend the amendment of the management rules; the enactment and amendment of regulations necessary for the enforcement thereof; the resolution on maintaining and operating standards of the entire residential facilities, etc.

2) In addition, the former Housing Act shall set the criteria for the management rules that are applicable to the management or use of multi-family housing as prescribed by Presidential Decree in order to protect occupants and users of multi-family housing (hereinafter “occupants, etc.”) and to maintain the order of residential life, and the occupants, etc. shall set the management rules by referring to the criteria for the management rules (Article 44(1) and (2)).

Article 44(1) of the former Enforcement Decree of the Housing Act shall include the rights and duties of occupants, etc., the composition and operation of a council of occupants' representatives, the duties of its members and responsibilities thereof, matters concerning the procedures for election district and the dismissal of the representatives of each building, measures against those who violate the management rules and those who disrupt communal order, and other matters necessary for the management of multi-family housing (Article 57(1)). The first management rules after the sale of multi-family housing shall be determined by the method that the project undertaker consents in writing by the majority of the relevant prospective occupants (referring to the contents proposed at the time of concluding the management contract with the prospective occupants in accordance with the management rules). When revising the enacted management rules, the resolution of the council of occupants' representatives or by at least 1/10 of the entire occupants, etc. shall be proposed and the consent by the majority of the entire occupants, etc. (Article 57(3) and (52)1) shall be obtained (Article 57(1))).

Article 44(1) of the former Housing Act and Article 57(1) of the Enforcement Decree of the former Enforcement Decree of the Housing Act “Rules on the Management Rules of Multi-Family Housing” established pursuant to Article 44(1) of the former Housing Act and Article 57(1) of the former Enforcement Decree of the Housing Act (applicable to multi-family housing located within the administrative district of Seoul Special Metropolitan City, and amended on September 6, 2010) shall comply with the Act, Decree, and regulations related to multi-family housing management (hereinafter “the Housing Decree”), regulations, and regulations delegated by the management rules pursuant to Article 51(1)1-2 of the former Enforcement Decree of the Housing Act, and the regulations enacted and amended by the council of occupants’ representatives (hereinafter “relevant regulations”) to ensure that occupants, etc. have the right to use common areas as prescribed by the relevant regulations (Article 10 subparag. 2); the occupants, etc. shall comply with the relevant regulations to maintain the order of community life and maintain and manage all facilities; and if they violate communal order, they may comply with the rules (1).

3) Meanwhile, Articles 5(1), 11, 14(1), (3), (9), and (10), 18(1) and (2), 3, 14(1), (2), 19(1), and (2) of the former Enforcement Decree of the Housing Act and the former Enforcement Decree of the Housing Act, which were enacted on August 11, 2016 and enforced on August 12, 2016 (Presidential Decree No. 27445) have the same purport as above (Article 5(1), 11, 14(1), (3), and (9), and (2) of the Multi-Family Housing Management Act, and Articles 3, 14(1), (2), 19(1), and (3) of the Enforcement Decree of the said Act to ensure the transparent, safe, and efficient management of multi-family housing by prescribing matters concerning the management of multi-family housing (Article 2745).

C. In light of these provisions, the council of occupants' representatives is a self-resolution body of the collective housing composed of the former Housing Act or the Multi-Family Housing Management Act, and it is obligated to follow matters concerning the management of the collective housing determined by the council of occupants' representatives, unless fundamental rights in the collective housing are infringed to ensure a smooth community life. Matters concerning the management of the collective housing include “matters concerning the maintenance and operation of parking lots within the collective housing”. Therefore, if the council of occupants' representatives decided to prohibit entry into a parking lot within the collective housing complex of a person who is not an occupant, etc. (hereinafter "outside person") and notified the outside person thereof, the outside person entered the parking lot against the decision of the council of occupants' representatives, even if he did not receive specific restraint from the manager at the time of entry, and therefore, the crime of impairing structures is established.

Even if an outside person entered a parking lot with the consent of some occupants, the establishment of a crime of intrusion on a structure is not affected, as long as the individual occupants, etc. are obligated to comply with the decision on the management of the parking lot within the complex of the council of occupants' representatives, insofar as fundamental rights to the parking lot are not infringed. Whether the decision of the council of occupants' representatives prohibiting the outside person from entering the parking lot should be determined by comprehensively taking into account the details of the relevant provisions on the maintenance and operation of the parking lot, the relationship between the use and purpose of the parking lot, the relationship between the outside person and the outside person, the purpose and method of entry, etc.

2. The summary of the facts charged in this case is that the Defendant entered the underground parking lot of the apartment in this case for the following business purposes even though the Seoul Eastern District Court received a provisional disposition ordering the prohibition of entry into and exit from the apartment parking lot to the underground parking lot of the apartment in this case to the effect that “the Defendant shall not have access to the apartment in this case for rent business.”

3. A. The following facts are acknowledged according to the evidence duly admitted by the court below.

1) From 2009, the Defendant, a person who conducts a dry-type car service business, was permitted by the council of occupants' representatives to conduct a detailed business for occupants, etc. in the underground parking lot of the instant apartment from around 2009, and entered into a contract with the management office for the instant apartment, and paid a deposit and monthly rent to the management office. The Defendant, separate from some occupants, etc. of the instant apartment, has entered into a detailed service contract with the third party and operated the third party business.

2) After the conclusion of the visiting rent contract between the Defendant and the management office, the council of occupants’ representatives of the instant apartment was an open bid with respect to the company engaged in the rent business for occupants, etc. at the underground parking lot of the instant apartment, but failed twice. The management office of the instant apartment was a negotiated contract on November 17, 2015 with the amount of KRW 1 (mutual name omitted) and KRW 2 (mutual name omitted) as well as KRW 10 million, and monthly rent as KRW 80,000.

3) However, the Defendant continued to run a tea business in the underground parking lot of the instant apartment in order to implement the three-dimensional service contract that was concluded with some occupants, etc.

4) Accordingly, the council of occupants' representatives of the instant apartment was decided to prohibit the Defendant from entering the underground parking lot for the rent-on business, and then applied for a provisional injunction against the Defendant’s entry into the instant apartment parking lot as Seoul Eastern District Court 2016Kahap10109, and the said court rendered a provisional injunction against entry into the instant apartment lot on August 8, 2016, stating that “the Defendant shall not have access to the instant apartment parking lot for rent-on business” (hereinafter “the provisional injunction order”).

5) On September 22, 2016, the Defendant: (a) entered the underground parking lot of the instant apartment on September 22, 2016; and (b) borrowed some of the occupants, etc. who entered the detailed service contract with the Defendant.

6) Meanwhile, pursuant to Article 44(2) of the former Housing Act and Article 57(1) of the former Enforcement Decree of the Housing Act, the management rules of the instant apartment located in ○○○, Seoul, were enacted and amended by referring to the “Rules on the Management Rules of Multi-Family Housing”. According to the management rules of the instant apartment, occupants, etc. are obliged to comply with the matters delegated by the management rules and the provisions enacted and amended by the management rules for the maintenance of order of community life, the improvement of residential life, and the maintenance and management of all facilities, and to use the section for common use suitable for the relevant purpose (Articles 7(1) and 13(1)).

According to the regulations on the parking lot management of the apartment in this case established by the council of occupants' representatives pursuant to Article 27 (1) 3 of the Management Rules of the apartment in this case, the council of occupants' representatives may restrict the passage of some vehicles or collect parking expenses to prevent property damage or various accidents from the vehicle passing through the apartment complex (Article 4), and the management body may restrict the passage of the vehicle by fixing time to prevent theft and safety accidents in the apartment complex. In this case, occupants, etc. have the duty to cooperate in the management of the management body (Article 6).

B. Examining the above facts in light of the legal principles as seen earlier, the authorized administrator of the instant apartment parking lot is the council of occupants' representatives, and the Defendant entered the underground parking lot of the instant apartment in violation of the resolution of the council of occupants' representatives of the instant apartment and the provisional disposition order. Thus, even if the Defendant entered the underground parking lot of the instant apartment in accordance with the third service contract concluded with some occupants, and did not receive specific measures from the manager, the crime of intrusion upon the building is established.

On the other hand, the council of occupants' representatives of the apartment of this case may restrict the passage of vehicles passing through the apartment complex of this case in order to prevent property damage to occupants, etc. or various accidents, and the occupants, etc. have the duty to comply with such determination by the council of occupants' representatives. Therefore, even if the council of occupants' representatives prohibited the Defendant, who entered into the detailed service contract with some occupants, from entering the underground parking lot of the apartment of this case for the rent business, it cannot be deemed as an infringement on the essential rights of some occupants, etc. to the underground parking lot of the apartment of this case. Thus, even if the Defendant entered the underground parking lot of the apartment of this case with the consent of some occupants, etc. who entered

C. Based on its stated reasoning, the lower court convicted the Defendant of the facts charged. Although the reasoning of the lower judgment partially inappropriate, the lower court did not err in its judgment by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the “influence” of the crime of intrusion into a structure, and by omitting necessary judgment.

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

Justices Noh Jeong-hee (Presiding Justice)