건설산업기본법위반
1. The judgment below is reversed.
2. Defendant C is punished by a fine of KRW 5 million, and Defendant D is punished by a fine of KRW 2 million.
1. Summary of the grounds for appeal (misunderstanding of legal principles or factual errors);
A. The Defendants (the violation of the Framework Act on the Construction Industry due to the name lending) used the trade name of Defendant B Co., Ltd. (the representative director A, hereinafter referred to as “B”) to perform each of the instant teaing construction works by using the name of Defendant D Co., Ltd. (the representative director C; hereinafter referred to as “D”).
Defendant
D has contracted the above construction from E to Defendant A with the intention of substantially participating in each of the instant following construction works, and subcontracted the important parts of the construction to Defendant A. However, Defendant D was in charge of part of the construction, such as preparation for construction and execution, preparation for construction, and printing work.
Therefore, the crime of violating the Framework Act on the Construction Industry is not established for the defendants.
B. Defendant C and Defendant D (the violation of the Framework Act on the Construction Industry due to a comprehensive subcontract) subcontracted each of the instant following projects to Defendant A rather than Defendant B, and Defendant A does not constitute “contractor who engages in construction business upon registration, etc.” which prohibits subcontracting as to “the entire contracted construction works or most of the main parts determined by the Presidential Decree” under Article 29(1) of the Framework Act on the Construction Industry.
(See Article 2 subparag. 5 of the Framework Act on the Construction Industry). Therefore, the Defendants cannot commit a violation of the Framework Act on the Construction Industry.
2. Determination on the grounds for appeal
A. (1) As to the violation of the Framework Act on the Construction Industry due to the name lending, the relevant legal doctrine is the former Framework Act on the Construction Industry (amended by Act No. 14708, Mar. 21, 2017; hereinafter “former Framework Act on the Construction Industry”).
"Act of allowing another person to receive or perform construction works by using his/her name or trade name" prohibited by Article 21 shall be qualified by using another person's trade name or trade name.