The case holding that the removal of the building constitutes a justifiable act due to the work prescribed in Article 20 of the Criminal Act, after obtaining a provisional disposition that "it shall not interfere with the business of the reconstruction association's business of ordering the person who has expressed his/her intent to withdraw from the association and supplying it to the reconstruction project within the project implementation district"

The case holding that the removal of the building is a justifiable act due to the work prescribed in Article 20 of the Criminal Act, after obtaining a provisional disposition that "it shall not interfere with the business of the reconstruction association's business of ordering the person who has expressed his/her intent to withdraw from the association and supplying it to the reconstruction project within the project implementation district".

Article 20 of the Criminal Act

Defendant

Prosecutor

Attorney Lee E-soo

Seoul District Court Decision 97No5057 delivered on September 30, 1997

The appeal is dismissed.

We examine the grounds of appeal.

1. The summary of the facts charged of this case is that "the defendant is the president of Mapo-dong reconstruction association in Mapo-gu in Seoul, and the defendant's act of withdrawing from the above association around November 15, 1996, and the defendant's act of removing the above building without the victim's consent from the above reconstruction association's house, which is the victim's member of Mapo-gu in Mapo-gu in Seoul, requires large amount relocation expenses than other association members, and does not move to another place, and thus, the defendant's act of removing the above building without the consent of the above reconstruction association's consent to the removal of the above building by using the divers of the above house and damaging all the building of this case by using the diversing machine to the purport that the above act of removing the building of this case is not possible, and the majority of the above association's act of removing the building of this case can still remove the building of this case with the consent of the above reconstruction association's comprehensive removal of the building of this case after the completion of the reconstruction project."

2. Members of a reconstruction association established under the Housing Construction Promotion Act are prohibited from withdrawing at will from the association unless there is any inevitable reason (see, e.g., Supreme Court Decision 96Da23887, May 30, 1997). However, as acknowledged by the court below, in case where the above high ethics group, which is members of the reconstruction association of this case, submitted a written withdrawal from the association and submitted a written withdrawal to the association to the effect that it refuses to remove and remove the building of this case, it shall be reasonable to deem that the above high ethics group withdrawn the consent to remove the building of this case while joining the reconstruction association of this case, and it shall not be deemed that the above high ethics association of this case has no effect of withdrawal from the association of this case, such as the judgment of the court below.

However, Article 3 subparagraph 9 of the Housing Construction Promotion Act defines the reconstruction association as the association established by the owner of the existing house in order to remove the old or inferior housing as prescribed by the Presidential Decree and construct the housing on the site of the removal, and according to the records, the regulations of the association of the reconstruction association of this case provide that "the purpose of the association of this case is to remove the old or inferior housing under Article 2 and build the housing on the site of the building" under Article 46 (1) of the above Act, and that "the building obstacles, etc. within the project area shall be removed at the expense of the construction company" shall be removed at the expense of the construction company. Thus, the defendant, who is the head of the association in charge of the affairs of the reconstruction association of this case, can remove the building, etc. owned by the members of the association within the project area in accordance with the above laws and the regulations of the association, regardless of his intention of withdrawal from the association, it shall not be deemed as a provisional disposition as a crime under Article 20 of the Criminal Act.

Therefore, the court below's determination that the defendant's act was an act with the victim's consent is unlawful as it erred by misapprehending the legal principles on reconstruction association established under the Housing Construction Promotion Act or on the victim's consent under Article 24 of the Criminal Act. However, the court below's conclusion that the charge of this case against the defendant is an act which does not constitute a crime is justifiable, and the above illegality does not affect the conclusion of the judgment. We do

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

Justices Lee Yong-hun (Presiding Justice)