건설산업기본법위반
All appeals by the Defendants are dismissed.
1. Summary of the grounds for appeal (the factual error, misunderstanding of legal principles, and unreasonable sentencing)
A. misunderstanding of facts and misunderstanding of legal principles, Defendant C Co., Ltd. (hereinafter “Defendant Co., Ltd”) ordered the construction of the new building in Gangnam-gu Seoul Metropolitan Government K ground (hereinafter “instant K Building”) and the construction of the new building in Seocho-gu Seoul Metropolitan Government MM ground (hereinafter “instant M building construction”) to give a subcontract to A. As such, Defendant B did not lend Defendant Co., Ltd’s construction license to A.
Nevertheless, the first instance court found Defendants guilty of violating the Framework Act on the Construction Industry on different premises. The first instance court erred by misapprehending the facts and by misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment.
B. The first instance judgment on the unfair sentencing (each of the defendants' fines of five million won) is too unreasonable.
2. Determination
A. As to the assertion of mistake of facts and misapprehension of legal principles, the phrase “an act of allowing another person to execute construction works using his/her name or trade name” prohibited by Article 21 of the Framework Act on the Construction Industry means an act of allowing another person to use his/her trade name or name with the knowledge that another person will perform construction works with the qualification by using his/her trade name or name and with the knowledge that he/she will do so, and it is reasonable to interpret
As such, all or most of subcontracted construction works in the name of any constructor were executed by any other person.
Even if the constructor has received a contract with the intention of actual involvement in the construction work, and has been actually involved in the construction work, it cannot be viewed as a nominal lending.
Whether a constructor has actually participated in the execution of construction works is a constructor and a constructor related to the details of demand and supply of construction works and the promise to receive the consideration thereof, the details of the consideration and the method of giving and receiving it.