연구 요약
연구 요지 (AI)
재개발·재건축사업의 주요 이해관계자와 관련된 형사법제의 개선방안을 연구했다.
초록
Redevelopment and reconstruction projects require a long period as the maintenance area is included in the initial plan until the end of the project. In other words, smooth project progression or a shorter project period can be successful in itself as a project typically takes 8 to 10 years to complete. Many project procedures under South Korea’s Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereafter, “the Act”) are indispensable, but there is room for institutionally shortening the period, preventing procedural delays due to litigation, or shortening the process of reaching an agreement.
Furthermore, the Act has a legal structure that is contested by several factors. As several projects were incorporated into one legal system, there was a gap in regulation or excessive regulation. All disputes lead to litigation due to sharp conflicts of interests.
Redevelopment and reconstruction cooperative problems have mostly been disputes and conflicts of interest between (1) cooperatives and members over profits of maintenance projects, (2) cooperatives and builders, and (3) cooperatives and local government; and corruption related to (1) money and goods provisions such as cooperative operating expenses due to fierce competition among construction companies, (2) builder selection or change, and (3) the process of selecting cooperative partners.
These repetitive issues have caused many social problems and received significant criticism; their repetition may have been the fundamental cause for the redevelopment and reconstruction cooperatives to operate in a crippled and irrational manner. Such corruptive practices ultimately lead to delays in maintenance projects, increases in selling prices, and poor constructions. This eventually manifests as significant losses to cooperative members (e.g., landowners) and consequent serious harm. Hence, the central and local governments are very concerned in the selection of builders in maintenance projects and are sensitive to possible corruptions and expedients.
The government is attempting to minimize conflicts with builders in maintenance projects by issuing the Act as well as related standards and notices. The Act was ratified on December 30, 2002 and enforced on July 1, 2003. Although over 19 years have since passed, the laws, standards, and notices related to the selection of cooperative executives, and specialized managers and builders in maintenance projects continues to change.
This is because builder selection in redevelopment and reconstruction projects is tied to a significant monetary amount; thus, competing builders employ several promotional tactics, such as illegally contacting the cooperative, cooperative executives, and maintenance project managers until the general meeting of cooperative, which is the final day of selecting a builder, to secure selection. Regarding redevelopment and reconstruction, various criminal punishment provisions were established around 2010 when maintenance projects were actively carried out.
To achieve the goal of “preventing illegal acts” through punishment provisions, first, in the process of enacting legislation, a systematic understanding of each illegal act and a clear criminal constitution premised on this must be stipulated, and an investigative agency and expert court are needed for the entire redevelopment and reconstruction system. Furthermore, crimes that are largely centered on builders and those that simply distort the will of cooperatives should be distinguished, and efforts should be made to establish the provisions of criminal punishment appropriate for each illegality.
The provision of systematic criminal punishment and the enforcement of the law thereon, and a clear understanding of the framework by which criminal penalties provisions are enforced on, are indispensable elements necessary for fair maintenance. Moreover, the redevelopment and reconstruction system was introduced only as a system to repair deteriorated and poor housing or to demolish and rebuild old apartments. When designing each provision, the government was unaware of the substantive and legal issues.
Hence, early on, even if dissatisfaction escalated in the process of redevelopment and reconstruction projects, it was difficult to formulate a theory of these complaints in public or civil legal relationships, and to file a lawsuit through it. Today, after going through this difficult initial process for about 30 years, the local governments have become familiar with practical matters, the judiciary has been trained in numerous lawsuits, and the legislative function of the Ministry of Land, Infrastructure, and Transport and the National Assembly have reached a considerable level in responding sensitively to market disputes.
The prevention of corruption by preparing detailed provisions for criminal punishment in redevelopment and reconstruction projects became more feasible. In Korea, many studies have been carried out mainly on public regulations in relation to redevelopment and reconstruction projects, but there is scant research on civil and criminal law issues. Since the problems surrounding real estate transactions are not limited to civil matters but cause criminal issues, it is challenging to clearly identify whether they are civil matters.
Ahn, Jeongbin (2021) “Discussion on Criminal Law Regarding Punishment of Misappropriation: Focusing on the Real Estate Double Selling Issue, Hanyang Journal of Law, The Institute for Legal Studies, School of Law, Hanyang University. P. 152. Accordingly, this study examines the problems arising in the legal relationship between major stakeholders who are the main project participants in the redevelopment and reconstruction market, especially in each phase of the maintenance project, and the problems of criminal punishment, and proposes legal and institutional measures to improve the situation. Although it is impossible to solve all these problems
발행 정보
2023. 경남대학교 대학원 국내박사 학위논문