건설산업기본법위반
All appeals by the Defendants are dismissed.
1. The summary of the grounds for appeal (in fact-finding or misunderstanding of legal principles), the lower court determined that D, a witness of the lower court adopted by the lower court, did not appear repeatedly to receive a writ of summons, etc. of witness, and accepted as evidence the Defendants by recognizing the admissibility of “D’s authenticity” which is hearsay evidence pursuant to Article 314 of the Criminal Procedure Act in a state where the Defendants’ right to cross-examine was not guaranteed at all. This is contrary to the principle of court-oriented principle or the hearsay rule relating to admissibility
Furthermore, at the time, the defendant A (the representative director of the defendant limited company B) has not subcontracted the construction work of this case to D who did not register the construction business.
The “Agreement on Execution of Construction Work” written between the Defendants and D is not a subcontract, but a contract that employs D as a field manager of the instant construction project. Even if the Defendants and D entered into a subcontract with respect to the instant construction project (part of the instant construction project), as long as the Defendants and D actually performed the instant construction project irrespective of the said contract, the Defendants may not be found guilty of the Defendants in light of the legislative intent of the Framework Act on the Construction Industry.
Nevertheless, the lower court convicted all the Defendants. In so doing, the lower court erred by misapprehending the facts, misapprehending the legal principles on the admissibility of hearsay evidence or the establishment of the relevant crime, thereby adversely affecting the conclusion of the judgment.
2. Determination
A. First, examining the Defendants’ assertion on the admissibility of evidence, etc. of D’s evidence, even if the lower court’s “D’s authenticity” was not recognized at the lower court’s trial stage, D as a witness of the prosecutor’s trial on the third trial date (15:00, Jan. 8, 2019) was present at this court and examined after the witness oath. As to the aforementioned written evidence and the contents of D’s preparation during the witness examination process.