In case where a "owner or manager" who has a duty to maintain and manage a building is an unincorporated association, whether the subject of a violation of Article 26 (1) of the former Building Act under Article 79 (4) of the same Act is a natural person who is the representative body (affirmative)

Unlike the fact that an unincorporated association can be the subject of judicial rights and obligations like a juristic person, it is inevitable to realize the affairs of the association by the representative act according to the decision-making of the representative body, which is a natural person representing the organization, unless otherwise expressly provided in the law. Thus, in case where the "owner or manager" under Article 26 (1) of the former Building Act (amended by Act No. 4919 of Jan. 5, 1995) is an unincorporated association, the representative body, who is a natural person, carries out its duties. Thus, in case where the "owner or manager" under Article 26 (1) of the same Act (amended by Act No. 4919 of Jan. 5, 1995) is an unincorporated association, a person who violates the provisions of Article 26 (1) of the same Act from Article 79

Articles 26(1) and 79 subparag. 4 of the former Building Act (amended by Act No. 4919 of Jan. 5, 1995)

Supreme Court en banc Decision 82Do2595 Decided October 10, 1984 (Gong1984, 1816), Supreme Court Decision 85Do575 Decided September 23, 1986 (Gong1986, 2986), Supreme Court Decision 93Do1483 Decided February 8, 1994 (Gong1994, 1038), Supreme Court Decision 94Do325 Decided July 28, 1995 (Gong195Ha, 3029)

Defendant

Defendant

Attorney Yoon Young-young

Changwon District Court Decision 95No1419 delivered on January 26, 1996

The appeal is dismissed.

The grounds of appeal are examined.

1. On the first ground for appeal

Unlike the fact that an unincorporated association can be the subject of judicial rights and obligations like a juristic person, it is inevitable to realize its criminal capacity and the affairs of the association by representative act according to the decision-making of the representative body, which is a natural person representing the organization (see Supreme Court Decision 82Do2595, Oct. 10, 1984). In the case of an unincorporated association, the "owner or manager who is obligated to maintain and manage the building pursuant to the provisions of Article 26 (1) of the former Building Act (amended by Act No. 4919, Jan. 5, 1995; hereinafter the same shall apply) is a natural person, and therefore, the "person who violates the provisions of Article 26 (1) of the same Act" in Article 79 subparagraph 4 of the same Act means a natural person who is a representative body of an unincorporated association.

However, according to the records, since the defendant is recognized as the representative of the 's management body of cansbert general management body' which is an unincorporated association managing the building of this case, the court below is just in finding that the defendant, as the representative of the building of this case, violated the duty to maintain and manage the building of this case as the manager of the building of this case, and judged that the defendant is the subject of the violation of Articles 79 subparagraph 4 and 26 (1) of the former Building Act. There is no error of law in the judgment below's failure to conduct an examination in violation of the rules of evidence, or there is no error in the misapprehension of the legal principles as to the manager of Article 26 (1) of the same

2. On the second ground for appeal

According to the records, in the first instance court, the defendant led the police and the non-indicted Yhee to establish a wood prosecution in the annexed parking lot of the building of this case and led him to use it for the purpose other than the parking lot (the back of 183 pages of the investigation records, the trial records, the 73 pages of the trial records), and even according to the statement of the above Park Pungsan, he was made by the defendant under the direction of the defendant (the back of 212 pages of the investigation records) and received 55% of his remuneration from the defendant (the back of 211 pages of the investigation records). Thus, it is reasonable to view that the above Park Pungsan installed a wood prosecution in the annexed parking lot of the building of this case as also by the direction of the defendant

Therefore, the court below is just to recognize that the defendant installed a wood laboratory in the annexed parking lot of the building of this case and used it for the purpose other than the parking lot, and there is no violation of the rules of evidence against the judgment of the court below such as the violation of the rules of evidence, the hearing dust, the reasoning and the legal scenario

3. On the third ground for appeal

According to the reasoning of the judgment below, on December 20, 1994, the court below determined that the Defendant violated Articles 78(1) and 8(1) of the former Building Act after recognizing the fact that the Defendant, without permission, posted the billiard hall, which is an amusement facility with a size of about 332 square meters of the sixth floor of the instant building, to the entertainment place, which is an entertainment assembly facility, and changed the purpose of the building.

According to the records, the defendant was permitted to change the use of the sixth floor of the building of this case, which was used as a amusement facility on January 18, 1993, to a public restaurant, which is a second class neighborhood living facility (the court records 8 to 90 pages). Since it is recognized that the court below changed the use of the sixth floor of the building of this case to a viewing assembly facility that can be used at a meeting, such as seminars, without permission without permission of temporary change of the first instance court as cited by the court below, it is erroneous for the court below to recognize that the court below changed the use of the sixth floor of the building of this case to a viewing assembly facility at the party room. However, as long as it is recognized that the defendant changed the use of the sixth floor of this case to a viewing assembly facility at the party room, it shall be deemed that the

In addition, the judgment of the court below is not erroneous in the misapprehension of legal principles, the rules of evidence collection, or the incomplete deliberation, as otherwise alleged in the ground of appeal. The grounds of appeal pointing this out shall not be accepted.

4. On the fourth ground for appeal

According to the records, the defendant's act of interference with the business of this case cannot be deemed to constitute a consent of the victim or a legitimate act, as alleged in the grounds of appeal, and the defendant did not have any such assertion until the court below rendered the judgment. The grounds of appeal pointing this out also cannot be accepted.

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

Justices Park Jong-chul (Presiding Justice)