[1] In a case where an individual cooperative does not specify the method of perusal or reproduction under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, whether an association’s executives shall comply with the request for perusal or reproduction by means of mail, facsimile, or any of the information and communications networks, which is an ordinary method, in addition to the on-site delivery (affirmative), and whether the provision that a cooperative member who requested perusal or reproduction bears the cost of reproduction is required to peruse or copy only on the

[2] In a case where the Defendants, an officer of the Housing Redevelopment Act, were indicted on charges of violating the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents on the ground that they failed to comply with the request within 15 days after they received a request for perusal or reproduction of documents concerning the implementation of the rearrangement project from the association members, the case holding that the judgment below which acquitted the Defendants on the ground that there was no evidence to acknowledge that the members who applied for perusal or reproduction had visited the association within

[1] Article 81(6) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 13508, Sep. 1, 2015; hereinafter “former Act”) provides that partnership officers shall comply with the request if there is a request for perusal or reproduction, and that the expenses incurred in duplication shall be borne by the claimant, and it does not provide for specific methods to comply with the request for perusal or reproduction.

Article 81(2) of the former Act and Article 70(2)5 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas (wholly amended by Presidential Decree No. 28628, Feb. 9, 2018) provide that partnership executives shall notify union members of the method of perusal and reproduction in writing so that they can determine the method of perusal and reproduction in detail. Nevertheless, if an individual association does not specify the method of perusal and reproduction, it is reasonable to interpret that it shall comply with a request for perusal and reproduction by means of mail, facsimile, or information and communications network, which is an ordinary method, in addition to on-site delivery.

The duty of disclosure under Article 81(1) of the former Act is merely a separate provision from the duty of responding to the request for perusal or reproduction under Article 81(6) of the same Act in that the obligation of disclosure takes place to the partnership's officers, even if there is no request from the partnership members, and the provision that the requesting partner bears the cost of duplication cannot be interpreted to require perusal and reproduction only on the site.

[2] In a case where the Defendants, an officer of the Housing Redevelopment Association, were indicted on charges of violating the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 13508, Sep. 1, 2015; hereinafter “former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents”) on the ground that they failed to comply with the request within 15 days after they received a request for perusal or reproduction of documents pertaining to the implementation of the rearrangement project from the association members, the case holding that the lower court erred by misapprehending the legal principles on the request for perusal or reproduction under the former Act, and failing to comply with all necessary deliberations, on the ground that there was no evidence to acknowledge that the association members, who applied for perusal or reproduction, did not comply therewith within 15 days after the date of receipt of the request for perusal or reproduction.

[1] Article 81(1) and (2) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 13508, Sep. 1, 2015; see current Article 124(1) and (2) and (6) (see current Article 124(4) and (5)), Article 86 subparag. 6 (see current Article 138 subparag. 6) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 13508, Sep. 1, 2015); Article 70(2)5 (see current Article 94(2) and 5 (see current Article 94(2) of the former Enforcement Decree on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents) / [2] Article 30 of the Criminal Act; Article 81(1) and (2) of the former Act on the Maintenance and Improvement of Residents and Dwelling Conditions for Residents (Amended by Act No. 13508, Sept. 1, 1, 208) and 2)

Defendant 1 and one other

Defendants and Prosecutor

Law Firm (Bae, Kim & Lee LLC, Attorneys Lee Jong-seok et al., Counsel for defendant-appellant)

Seoul Eastern District Court Decision 2016No324 decided August 19, 2016

The judgment below is reversed, and the case is remanded to the Seoul Eastern District Court.

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

A. On November 21, 2014, the Defendants, the executives of the partnership, did not comply with the request within 15 days, even though they were requested to peruse or copy the documents stated in the facts charged.

B. For the following reasons, the lower court acquitted the Defendants on the violation of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents due to the nonperformance of perusal or reproduction of the data.

1) Article 81(1) and (6) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 13508, Sep. 1, 2015; hereinafter “former Act”) separate the duty to disclose documents and related data concerning the implementation of a rearrangement project and the duty to respond to the request for perusal and reproduction, and Article 81(2) of the same Act provides that the list, etc. of the subject to disclosure shall be notified in writing. Article 81(6) of the same Act provides that the requester shall bear the expenses incurred in duplication within the scope of actual expenses. In light of Article 81(6) of the same Act, the obligation to respond to the request for perusal and reproduction shall be construed as having the requested documents and related data perused or copied within 15 days, unless there is any special reason not to respond to

2) However, comprehensively taking account of the evidence submitted by the prosecutor, a member requested perusal and reproduction of the information disclosure request as of November 21, 2014, and it is difficult to view that the Defendants visited the association within 15 days, and thus, the Defendants cannot be deemed to have not complied with the request of members for perusal and reproduction in violation of Article 81(6) of the former Act. Thus, this part of the facts charged constitutes a case where there is no proof of criminal facts.

C. However, we cannot accept the judgment of the court below for the following reasons.

1) Article 81(6) of the former Act provides that the partnership’s officers shall comply with the request if there is a request for perusal or reproduction, and that the expenses incurred in duplication shall be borne by the claimant, but does not provide for any specific method to comply with the request for perusal or reproduction.

Article 81(2) of the former Act and Article 70(2)5 of the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas (wholly amended by Presidential Decree No. 28628, Feb. 9, 2018) provide that partnership executives shall notify union members of the method of perusal and reproduction in writing so that they can determine the method of perusal and reproduction in detail. Nevertheless, if an individual association does not specify the method of perusal and reproduction, it is reasonable to interpret that it shall comply with a request for perusal and reproduction by means of mail, facsimile, or information and communications network, which is an ordinary method, in addition to on-site delivery.

2) The duty of disclosure under Article 81(1) of the former Act is merely a separate provision from the duty to comply with the request for perusal and reproduction under Article 81(6) in that the partner’s obligation arises even without the request of the partner, and the provision that the partner who requested perusal and reproduction bears the cost of duplication cannot be interpreted to require perusal and reproduction only on the site.

3) Therefore, in this case where no evidence exists to deem that the instant association restricted the methods of reading and copying to the association members, the association’s officers’ failure to comply with the request within 15 days from the date of receipt of the application for perusal and copying shall be deemed to constitute a violation of the duty under Article 81(6), and the association members who applied for perusal and reproduction shall not be deemed to have visited the site of the association’s office, etc., and have to view

For the reasons indicated in its holding, the court below found the defendant not guilty on the grounds that there is no evidence to prove that the member who applied for perusal or reproduction only by the evidence submitted by the prosecutor visited the cooperative within 15 days. In so doing, the court below erred by misapprehending the legal principles on the duty to respond to the request for perusal or reproduction under the former Urban Improvement Act,

2. As to the Defendants’ grounds of appeal

For the reasons indicated in its holding, the lower court: (a) deemed that each of the instant loan contracts concluded by the Defendants constitutes “a contract that will become a partner’s burden, other than the matters stipulated in the budget” under Article 24(3)5 of the former Act; and (b) determined that the Defendants’ act of entering into each of the instant loan contracts without going through the resolution of the general meeting of the association would be subject to punishment under Article 85 subparag. 5 of the former Act; and (c) rejected the grounds for appeal

Examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on general assembly resolution under Article 24 of the former Act, contrary to what is alleged in the grounds of appeal

3. Conclusion

The part of the judgment of the court below regarding the violation of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents due to the refusal to peruse and copy should be reversed for the reasons mentioned above. Since this part and the conviction against the Defendants in the judgment of the court below are concurrent crimes under the former part of Article 37 of the Criminal Act, one punishment shall be imposed on the whole, the judgment of the court below is reversed, and the case shall be remanded to the court below for a new trial and determination

Justices Cho Jae-chul (Presiding Justice)