(영문) 대법원 2021.1.14.선고 2017도21323 판결

1. A. Since the crime of intrusion upon a building is the protected legal interest and protection of the law in fact, 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 relationship with the resident or manager of the building, etc., even if the act of entering the building was 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) The former Housing Act (wholly amended by Act No. 13474, Aug. 11, 2015; hereinafter “former Housing Act”) provides that when a majority of prospective occupants have moved in 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). The occupants shall constitute a council of occupants’ representatives within three months from the date of such request, and shall determine methods of managing the multi-family housing and notify the project operator thereof, and shall report them to the head of the competent Si/Gun/Gu (Article 43(3)), and matters concerning the composition, operation and resolution of the council of occupants’ representatives shall be prescribed by Presidential Decree (Article 43(8)2).

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 referred to as the "former Enforcement Decree of the Housing Act"), the council of occupants' representatives shall be comprised of at least four representatives (hereinafter referred to as "representatives by Dong") elected according to the constituency prescribed by the rules for the management of multi-family housing under Article 44(2) of the former Housing Act (hereinafter referred to as the "management rules") in proportion to the number of households by Dong (Article 50(1)), the representatives of each Dong shall be elected through the general, equal, and direct and secret election of occupants, etc. among occupants residing in the relevant multi-family housing complex for at least six consecutive months after the completion of their resident registration within the relevant multi-family housing complex (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 of the council of occupants' representatives shall be made by the majority of the entire facilities, facilities for water supply and drainage and operation standards;

2) In addition, in order to protect occupants and users of multi-family housing (hereinafter referred to as "occupants, etc.") and to maintain order in residential life, the former Housing Act shall set the criteria for the management rules, which shall apply to the management or use of multi-family housing, as prescribed by Presidential Decree, 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 the council of occupants' representatives, the duties and responsibilities of its members, the procedures for election of representatives by buildings and the grounds and procedures for dismissal, etc., measures against those who violate the management rules and those who derange 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) (Article 57 (2)); when revising the enacted management rules, a resolution of the council of occupants' representatives or at least 1/10 of all occupants, etc. shall be proposed and approved by the majority of all occupants, etc. (Article 57 (3) and Article 52 (1)).

Article 44 (1) of the former Housing Act and Article 57 (1) of the former Enforcement Decree of the Housing Act (amended on September 6, 2010), "Rules for the Management Rules of Multi-Family Housing in Seoul Special Metropolitan City (applicable to multi-family housing located in the administrative district of Seoul Special Metropolitan City, and amendments after September 6, 2010), occupants, etc. shall comply with the Act, Enforcement Decree, and Rules (hereinafter referred to as the "Housing Decree"), Acts and subordinate statutes related to multi-family housing management, these Rules, and Article 51 (1) 1-2 of the Decree, which are delegated by the Management Rules, and which are enacted and amended by the council of occupants' representatives (hereinafter referred to as the "relevant Rules") to ensure the smooth maintenance of community life (Article 7 (1)). In addition to the matters prescribed by the Housing Act, occupants, etc. shall have the right to use common areas as prescribed by the relevant regulations (Article 10 subparagraph 2).

3) Meanwhile, inasmuch as the Housing Management Act (Act No. 13474) enacted on August 11, 2015 to ensure the transparent, safe, and efficient management of multi-family housing and the Enforcement Decree of the Housing Act (Presidential Decree No. 2745), which was enacted on August 11, 2016 and enforced on August 12, 2016, has the same purport as the former Enforcement Decree of the Housing Act and the former Enforcement Decree of the Housing Act (Presidential Decree No. 2745), the said provision provides for the same purpose as that of the former Housing Act and the former Enforcement Decree thereof (Article 5(1), Articles 11, 14(1), (3), (9), and 18(1) and (2), Articles 3, 14(1), (2), 19(1), and (2), and 20(1), and (3) of the Enforcement Decree of the said Act, the residents' representative council, which was established for the management of multi-family housing, should not be established.

Even if an outside person entered the parking lot in the complex with the consent of some occupants, the individual occupants, etc. are obligated to comply with the decision on the management of the parking lot within the council of occupants' representatives, so long as essential 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 in the complex infringes on the essential rights of individual occupants, etc. shall be determined by comprehensively taking into account the details of the relevant provisions on the maintenance and operation of the parking lot, the original purpose and purpose of the parking lot, the relationship between occupants and the outside person, the purpose and method of entry of the outside person, etc.

2. The summary of the facts charged of this case is that the defendant entered the underground parking lot of the apartment in Seoul Eastern District Court to the effect that "it is prohibited from entering the underground parking lot of the apartment in this case for the rent-off business," even though he received a provisional disposition of prohibiting entry into the apartment parking lot of the apartment in this case, he infringed upon the building for the rent-off business.

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

1) Since 2009, the Defendant: (a) obtained permission from the council of occupants’ representatives to conduct a three-dimensional business for occupants, etc. in the underground parking lot of the instant apartment from around 2009; (b) concluded a contract with the management office of the instant apartment; and (c) paid deposit and monthly rent to the management office; and (d) concluded a three-dimensional service contract separately from some occupants, etc. of the instant apartment.

2) After the termination of the visiting rent contract between the defendant and the management office, the council of occupants' representatives of the apartment of the instant apartment of this case offered a public bid to the company that will engage in three business for occupants, etc. at the underground parking lot of the instant apartment of this case, but failed twice. The management office of the instant apartment of this case was the management office

On November 17, 2015, Non-Indicted 10000 and Non-Indicted 2 (△△△△△△△), and the monthly rent of KRW 10 million, and the monthly rent of KRW 800,000 were concluded by a private contract.

3) However, the Defendant’s performance of the third service contract concluded with some occupants, etc. even thereafter.

In the underground parking lot of the apartment of this case, the third party has continued to run the business.

4) Accordingly, the council of occupants' representatives of the apartment of this case 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 to the underground parking lot of this case as Seoul Eastern District Court 2016Kahap10109, and the above court on August 8, 2016 (hereinafter "the provisional injunction order of this case") with the purport that "the defendant shall not have access to the apartment of this case for rent-on business."

5) On September 22, 2016, the Defendant: (a) entered the underground parking lot of the instant apartment on September 22, 2016; and (b) moved a vehicle of some occupants, etc. who concluded a three-dimensional 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 apartment located in the Seoul lock-gu Office were enacted and amended by referring to the "Rules for the Management Rules of Multi-Family Housing". According to the management rules of the apartment of this case, occupants, etc. are obliged to comply with the matters delegated by the management rules and the regulations enacted and amended by the management rules for the maintenance and management of communal living, the improvement of residential life, and the maintenance and management of all facilities in the apartment of this case (Articles 7(1) and 13(1). According to the parking regulations of the apartment of this case established by the council of occupants' representatives pursuant to Article 27(1)3 of the management rules of the apartment of this case, the council of occupants' representatives may partially restrict the passage of vehicles or collect parking fees to prevent property damage or various accidents from vehicles travelling within the apartment complex (Article 4), and the management body may limit the passage of vehicles to prevent theft, safety accidents, etc.

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 and the provisional disposition order of this case. Thus, even if the Defendant entered the subordinate office 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 or various accidents, etc., and occupants, etc. have the duty to comply with such decision of the council of occupants' representatives. Therefore, even if the council of occupants' representatives prohibited the entry into the underground parking lot of the apartment of this case to the defendant who entered into the three-party service contract with some occupants, etc. for the three-party business, it cannot be deemed as an infringement of the fundamental rights of some occupants, etc., so even if the defendant entered the underground parking lot of the apartment of this case with the consent of some occupants, etc. who entered the three-party service contract with the defendant, it does not affect the establishment of the crime of intrusion into a structure. The court below convicted the defendant of the charges against the defendant on the grounds as stated in its reasoning. Although there are some inappropriate parts in the judgment of the court below, the court below did not err in the misapprehension of facts beyond the bounds of the principle of free evaluation of evidence or experience, or in the judgment omitted of 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.