Whether it constitutes an act of disturbing supply order under Article 47 of the Housing Construction Promotion Act to sell to the union members who are qualified after being denied the first recruitment of union members in the composition of a housing association (negative)

Even if there was a illegality in the composition of a housing association by making a housing association under the name of a person who is not a tenant but is qualified as a member of the association, it cannot be viewed as a supply of a house constructed and supplied under the Housing Construction Promotion Act in a false base under Article 47 of the Housing Construction Promotion Act if a person who is qualified as a tenant is recruited later, and thereafter, is allowed to change the name of the association member, and was shared to him.

Article 47 of the Housing Construction Promotion Act

Supreme Court Decision 80Do512 delivered on April 22, 1980 (Article 47 (1) of the Special Education and Development Promotion Act of the Republic of Korea (Article 47 (1) of the Special Education and Development Promotion Act of the Republic of Korea)

Defendant

The defendant is innocent.

The gist of the facts charged of this case is that the defendant, who is engaged in the building business, constitutes a real association for the purpose of giving preference to the construction of national housing in the above-mentioned housing construction business. The defendant, upon obtaining authorization for the establishment of a housing association from the above-mentioned public housing association on March 20, 1984, constructed 20 households above on the ground of the Incheon Northern-gu (detailed number omitted) with the approval for the establishment of a housing association. The defendant, on April 8, 1984, provided that the above 503 houses were sold out to the non-indicted 16,480,00 won, and the above 120 houses were purchased from the above public housing association association under the name of the above-mentioned public housing association upon obtaining the approval for the establishment of the housing association under the Housing Construction Promotion Act. The defendant, as stated in the separate list, provided that the defendant, the non-indicted 2, and the non-indicted 4 were to purchase the houses individually by means of fraud or other unlawful methods.

However, since the above housing association composed by the defendant formally obtains authorization from an administrative agency for the establishment of a new association and thereafter requires its members to purchase housing in lots, it is a matter of whether the above act of the defendant constitutes a case where the housing is constructed and supplied under this Act by deceit or other unlawful means" under Article 47 (1) of the Housing Construction Promotion Act. Thus, in order to determine this, Article 32 of the Housing Construction Promotion Act provides that the project operator must supply housing in accordance with the terms, methods and procedures of housing supply as prescribed by the Ordinance of the Ministry of Construction and Transportation in order to maintain the order of housing supply, and Article 2 subparagraph 3 of the Housing Construction Promotion Act provides that the housing and welfare facilities constructed by the project operator shall be supplied in lots or leased to the members of the housing association in accordance with Article 47 (1) of the Housing Construction Promotion Act, and that the above provision of the Housing Association shall be excluded from the supply of the housing under Article 47 (1) of the Housing Construction Promotion Act in light of the forms and procedures of the Housing Association's general housing supply order.

Therefore, in this case, considering whether the defendant's act constitutes a case where the association housing is illegally supplied as seen above, the association housing construction implementation guidelines of Incheon Metropolitan City and Metropolitan City which are bound in the public trial records cited above, and the contents of the housing association rules, etc., the association rules submitted at the time of application for association establishment authorization provide that the association members can withdraw with the consent of the head of the association where the association members intend to withdraw due to personal reasons among the association members, and it is necessary to determine whether the housing constitutes a period of prohibition of resale under the Housing Construction Promotion Act, and to secure the performance of loans, so it is necessary to newly establish the association members under the Housing Construction Promotion Act that the defendant newly supplied the housing under the name of the association members without the intention to move into the association when the association establishment was first established, and the defendant cannot be found to have supplied the housing under the housing construction Promotion Act, which is a new method of supplying the housing under the name of the association members by newly recruiting the association members under the name of the association members under the Housing Construction Promotion Act, and there is no other way to recognize the first association members under the name of the association members.

Thus, the facts charged of this case are ultimately without proof of facts constituting an offense, and thus, it is decided as per Disposition by the decision of not guilty in accordance with Article 325 of the Criminal Procedure Act.

Judges Cho Ho-ho