In a case where a contractor is changed under private law due to a violation of the articles of incorporation prior to the enforcement of Article 84-2 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, which provides for the selection of a contractor by competitive bidding method, and a ratification resolution thereon was passed after the enforcement of the said Act, the case holding that the actual change of the contractor was

Articles 11(2) (see current Article 11(1)) and 84-2 subparag. 1 (see current Article 84-3 subparag. 1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 7960, May 24, 2006)

Defendant 1 and one other

Defendants

Attorney Jin-jin

Seoul Western District Court Decision 2008No630 decided September 25, 2008

The judgment of the court below is reversed, and the case is remanded to the Seoul Western District Court Panel Division.

The grounds of appeal are examined.

1. Judgment on Defendant 1’s grounds of appeal

Article 11(2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Areas and Dwelling Conditions for Residents”) (amended by Act No. 7392, Mar. 18, 2005; Act No. 7960, May 24, 2006) provides that “A housing reconstruction project cooperative shall select a contractor under the provisions of paragraph (1) through competitive bidding as determined by the Minister of Construction and Transportation.” Article 84-2 Subparag. 1 (amended by Act No. 7392, Mar. 18, 2005; Act No. 944, Feb. 6, 2009) provides that a person who selects a contractor and a person selected as a contractor in violation of the provisions of Article 11 shall be punished, and the legislative intent of the said provisions is to block milk between a housing reconstruction project cooperative and a contractor, thereby eliminating various kinds of corruption, reconstruction, or creation of the main market.

According to the reasoning of the judgment below, the court below: (a) pursuant to the articles of incorporation, which provides that the Housing Reconstruction Association of this case shall select a contractor by a resolution of the members' general meeting on April 7, 2002, as the executor of the housing reconstruction project; and (b) concluded a construction contract on May 11, 2002; (c) however, on May 10, 2003, Defendant 1 was elected as the president of the Housing Reconstruction Association of this case on May 12, 2003, after which he was selected as the president of the Housing Reconstruction Association of this case on June 12, 2003, Defendant 2 changed the contractor by again concluding a construction contract with the non-indicted 2 Stock Association of this case on June 12, 2003; (d) on the recommendation of the head of Mapo-gu Office in accordance with the civil petition filing method of some members, the general meeting of members was held on September 24, 2005 and decided to ratification the above work executor without a resolution of the members' general meeting.

However, in light of the above laws and legislative intent, even if changing the contractor to a non-indicted 2 corporation following a resolution of the board of representatives on June 12, 2003, was null and void under private law in violation of the articles of association of the Housing Reconstruction Association of this case, the de facto change of the contractor was made at the time of the change of the contractor. Thus, on the premise that the change of the contractor was made only on September 24, 2005, the lower court determined that the Defendants may be punished under Article 84-2 of the Urban Improvement Act, on the premise that the change of the contractor was made only on September 24,

2. Defendant 2 did not submit the appellate brief so far, but in this case, the judgment of the court below is reversed for the benefit of Defendant 2, and the reason for reversal is common to Defendant 2 who did not submit the appellate brief (see Supreme Court Decision 2000Do2626, Dec. 8, 200).

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)