(영문) 서울중앙지방법원 2009. 11. 27. 선고 2009노2861 판결

If the above defendants did not pay the above fine, each of the above defendants shall be confined in the Labor House for the period calculated by converting 50,000 won into one day.

The provisional payment of the amount equivalent to each of the above fines shall be ordered.

The prosecutor's appeal against the defendant 4 is dismissed.

Reasons

1. Summary of the facts charged and the judgment of the court below

A. Summary of the facts charged

Defendant 1 is the president of the Yellow School Redevelopment Partnership, Defendant 2 is the general director of the above partnership, Defendant 3 and Defendant 4 are the auditors of the above partnership.

A housing redevelopment project partnership shall go through a resolution of the general meeting comprised of its members to conclude a contract to become a partner other than the matters prescribed in the budget.

On December 21, 2007, at the office of the above association located in Jongno-gu Seoul (hereinafter referred to as the "Detailed Address omitted), the Defendants concluded a contract for the construction of commercial interior works with the representative director of the non-indicted 1 corporation and the contractor as the above association and with the contractor as to the common areas being implemented by the above association, and the contract amount of the construction amount is KRW 9.145 billion.5 billion. The Defendants concluded a contract for the construction of commercial interior works with the members to bear KRW 7 billion among them.

Accordingly, Defendants conspired to enter into a contract to become a partner's burden other than the matters set forth in the budget without the resolution of the general meeting of partners.

B. The judgment of the court below

As to the above facts charged, the court below held that "executive officers of a cooperative which arbitrarily promotes "a contract that shall become a partner, except as otherwise expressly provided for in the budget" under Article 24 (3) 5 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the "Do Government Act") without the resolution of the general meeting under Article 85 (3) 5 of the same Act refers to the case where executive officers, including the president of the cooperative, enter into such a contract with the majority of the union members against the majority of the union members' will as a result of the execution of the contract without the prior resolution of the general meeting of the general meeting and without the resolution of the general meeting of shareholders under Article 24 (3) 5 of the same Act, and contrary to the matters that may have a significant influence on the promotion of the project, such as the selection and change of the contractor, etc., the court below held that the defendants were not guilty on the ground that there is no evidence to acknowledge the conclusion of the contract more than 309 persons after the ordinary general meeting of Sep. 21, 2008.

2. Summary of grounds for appeal;

A. In light of the legislative intent of the Do administration Act, the nature of the contract in this case, the contract amount, the share of the association members, etc., the contract in this case constitutes a matter that may have a significant impact on the promotion of the association's business, so long as the contract in this case did not go through a resolution of the general meeting in advance, the act of entering into the contract in this case constitutes the arbitrary promotion

B. The legality of ex post facto ratification shall be exceptionally acknowledged if it conforms to the majority or all of the union members, and the defendants' act of entering into the contract of this case constitutes an act of arbitrarily promoting the contract not only the matters determined by the budget but also the matters determined by the budget, in addition to the matters determined by the resolution of the general meeting under Article 85 subparagraph 5 of the Do Affairs Act, even if the resolution of ratification was made at the general meeting on September 19, 2007 at the general meeting of shareholders, it cannot be deemed that the above resolution was reflected in the whole union members' intent. Even if there was no resolution of delegation of the power to select the company for the interior works and to enter into the contract at the general meeting of shareholders at the above general meeting of shareholders, it is difficult to view that the resolution of ratification of the general meeting of September 2, 2008 is also a verification of the genuine will of the union members.

3. Determination

(a) Facts of recognition;

In full view of the evidence duly examined and adopted by the court below, the following facts may be recognized:

(1) Defendant 1 is the president of the Yellow School Area Housing Redevelopment Association (hereinafter “the instant association”); Defendant 2 is the general director of the said association; Defendant 3 and Defendant 4 are the auditors of the said association.

(2) At the special meeting of August 5, 2005, the association of this case was discussed to change the plan of commercial building as a way to revitalize the commercial building, to enhance the interior design of the commercial section for common use, and to promote the increase in the sales price. On May 3, 2007, the association of this case requested the non-indicted 3 Co., Ltd. to select the designer of the commercial building on the premise that the shop tenant will bear the cost of the design service in the commercial section, on the premise that the association members did not pass a resolution at the general meeting of the association members on the service contract for the design of the interior section for common use, the selection of the construction company, and the execution of the construction contract for the construction. On June 21, 2007, the board of directors held at the board of directors at the meeting of the non-indicted 3 Co., Ltd. to confirm the selection of the non-indicted 1 Co., Ltd. as the designer of the commercial section for common use, and concluded the service contract for the commercial use section for 1 and the non-indicted 200.

(3) On September 19, 2007, at the ordinary meeting of the general meeting, the resolution of ratification was made with respect to the design service contract for the art for common use of the above commercial building which was concluded in the name of the association of this case with only the name of the company, the date of concluding the contract, the contract amount, and the name of the contract. The meeting of the 205th meeting held on October 1, 2007, immediately after the above general meeting of the general meeting, the board of directors held on October 1, 2007, also held that the non-indicted 1 corporation paid 50% out of the design cost to the association, and passed a resolution to keep the remaining design from time to time, and it was never discussed whether the above interior design cost should be actually borne by the union members at the time of the above general meeting of the general meeting of the general meeting of the general meeting of the shareholders.

(4) However, on October 24, 2007, the board of directors held on October 24, 2007, and discussions were held on the conclusion of the contract for the construction of the section for common use, which requires approximately KRW 7 billion. The expenses were reflected in the general sale price and the authority to conclude the contract was delegated to the executive organ. On November 5, 2007, the board of directors held on November 5, 2007 presented the opinion that Defendant 1 shall bear the expenses for the section for common use which was held by the president of the association, and the resolution was made to bear KRW 60 through 7 billion out of the expenses for the interior of the anticipated section for common use.

(5) After the meeting of the 211th meeting held on November 28, 2007, with respect to the issue of expenses for the interior of the commercial section section for common use and partitions, the Kcasian decided to bear the expenses for the interior of the common section for common use by Nonindicted Co. 3 and to bear the expenses for the interior of the cooperative. Upon consultation with Nonindicted Co. 3, the Kcasian Association, the Kcasian Association, upon notification on November 28, 2007, notified that it would be recommended by qualified companies for the installation of the joint use section for common use, upon recommendation from the Construction Business Council of the Korea Specialized Construction Association on November 29, 2007. On November 30, 2007, the Kcas confirmed that the construction project was recommended by four qualified companies recommended by the Construction Business Council of the Korea Specialized Construction Association at the construction site office at the Yellowdong Housing Redevelopment on November 30, 2007, and confirmed that the construction project was opened on December 7, 2007.

(6) Following the above procedure, the 213th meeting of the 213th meeting held on December 11, 2007 presented the items of the selection of the contractor for the section for common use as the agenda, and the non-indicted 1 corporation was selected as the contractor for the section for common use, and the 6.5 billion won out of the construction cost was decided to bear the association and the non-indicted 3 corporation. On December 20, 2007, the board of directors held on December 214, 2007, proposed a case of the adjustment of construction cost for the section for common use on the agenda of subparagraph 5, and the association proposed a case of the adjustment of construction cost for the section for common use on the basis of the result of the increase of construction cost on December 13, 2008 with the consent of the remaining directors except for the title of the director, and the association took the burden of KRW 7 billion for the increased construction cost on the basis of the remainder of the construction cost.

(7) On December 21, 2007, the instant contract was concluded between Nonindicted Company 1 and the name of the instant association in accordance with the above resolution.

B. Determination

(1) Article 24(3) of the Do Government Act provides for the resolution of the general meeting. Article 25(2) of the Do Government Act and Article 35 of the Enforcement Decree of the Do Government Act provide that the matters of subparagraphs 1 (the amendment of the articles of incorporation), 2 (the method, interest rate, and method of borrowing funds, the method, interest rate, and the method of repayment), 5 (the contract that becomes a partner's burden, other than those stipulated in the budget), 6 (the selection and change of the removal business operator, the work executor, the designer, or the appraisal business operator), 7 (the selection and change of the management and disposition plan under the provisions of Article 48) and 10 (the formulation and change of the management and disposition plan under the provisions of Article 48) of the Do Government Act provide that the board of representatives shall not act on behalf of the general meeting, and Article 85 subparag. 5 of the Do Government Act provides that the executive of the association who voluntarily promotes the business under the provisions of each subparagraph of Article 24 shall be punished.

On the other hand, Article 16 (1) 9 of the union of this case prepared pursuant to the above law also stipulates that a general meeting passed a resolution on the contract to become a partner, in addition to the matters stipulated in the budget.

(2) The resolution of the above general meeting under the Do Government Act directly affects the rights and obligations of union members in relation to the redevelopment project. The resolution of the general meeting is stipulated in the previous redevelopment project in order to eliminate existing practices that have been infringed upon the rights and interests of union members and to vest the benefits related to the redevelopment in partnership members by concluding a redevelopment-related contract at will in connection with the redevelopment project. Thus, the above penal provisions are stipulated in the legislative intent and purpose of the above Act to prevent various corruption related to the redevelopment and reconstruction project and to confirm the genuine intent of union members and to protect their rights and interests. In light of the fact that a contract is concluded without the resolution of the general meeting, if it is difficult to restore to the original state due to the completion of the construction project and there is a possibility of causing confusion in legal relations, the "resolution of the general meeting" under Article 85 subparagraph 5 of the Do Government Act refers to a prior resolution of the general meeting. Therefore, if an executive officer, without prior resolution of the general meeting, has concluded a contract other than the matters set forth in the budget of the partnership, it cannot be deemed to be established later.

Meanwhile, even if it is difficult to make a prior decision at a general meeting on the specific contents of all the affairs promoted by the redevelopment cooperative due to the nature of the redevelopment cooperative, in light of the purpose of the above Do administration law provisions, in cases of concluding a contract to be a partner's burden, the purpose and contents of the contract to be promoted by an officer at the general meeting and the degree of the burden to be borne by the

(3) Regarding the instant case, comprehensively taking account of the following facts: (a) the police interrogation protocol against the Defendants; (b) the statement of the police statement against Nonindicted 4; (c) the construction scope of the construction project at the Yellowdong Building; (d) a copy of the recommendation request for a qualified company among the commercial facilities for public use; (e) a copy of the minutes of the board of directors’ meeting; (b) a copy of the board of directors’ meeting’ meeting’s meeting minutes; (c) a copy of the second time examination report; and (d) the second time examination report, etc., the agreement was concluded without prior resolution of the general meeting; (d) Defendant 1, as the head of the association of this case, shall be deemed to bear the cost of the construction project at the meeting of the board of directors at the time of signing the agreement; and (e) Defendant 2, as the head of the association of this case, shall be deemed to have been unable to conclude the agreement at the meeting of the board of directors at the time of signing the agreement; and (e) Defendant 3, as a design and an auditor’s meeting at the meeting of this case.

(4) On the other hand, Defendant 4 asserts that, as an auditor of the instant association, a resolution on the conclusion of the instant contract was passed, the board of directors did not present any opinion or exercise the right to pass a resolution, and that Defendant 4 did not arbitrarily implement the project without the resolution of the general meeting. Defendant 4 was present at the board of directors as an auditor, but it is difficult to recognize that Defendant 4 was carrying out the project solely on the fact that Defendant 4 did not actively object to the conclusion of the instant contract without the general meeting of directors

3. Conclusion

Therefore, since the prosecutor's appeal against the defendant 1, 2, and 3 is well-grounded, it shall be reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and since the appeal against the defendant 4 is without merit, it shall be dismissed pursuant to Article 364 (4) of the Criminal Procedure Act. It is so decided as follows

Criminal facts

Defendant 1 is the president of the association of the Yellow School Redevelopment Partnership, Defendant 2 is the general director of the association, and Defendant 3 is the auditor of the association.

On December 21, 2007, the above Defendants entered into a contract for the commercial interior work with Nonindicted Co. 1, 2000, the contractor and the contractor to whom Nonindicted Co. 2 were the above partnership and the contractor to whom the contractor are the above partnership and the contractor are the company, on which the contract amount is KRW 9.145 billion, and the partner will bear KRW 7 billion among them.

Accordingly, the above Defendants conspired to enter into a contract to become a partner's burden other than the matters set forth in the budget without a resolution of the general meeting of partners.

Summary of Evidence

1. Defendants’ respective legal statements

1. Each prosecutor's interrogation protocol (including Nonindicted 4's interrogation protocol) by the Defendants

1. Each police interrogation protocol against the Defendants

1. The police statement of Nonindicted 4

1. A written statement and a written complaint filed by Nonindicted 4

1. The scope of the construction work from the Yolology, the scope of the construction work, a copy of the recommendation case of an eligible business entity from among the common areas, sulnasium, sulnasium, sulnasium and commercial facilities, a copy of the recommendation copy of the eligible business entity, a copy of the minutes, the site descriptions, a copy of the meeting of the board of directors, a copy of the contract minutes, a copy of the

1. Minutes of each general meeting, data on meetings of the general meeting, partnership affairs, stenographic records of the general meeting, and design service contracts;