[2] The person who bears the burden of proving the criminal facts charged in a criminal trial (=the prosecutor) and the degree of probative value of evidence to acknowledge guilty

[3] The probative value of a fact recognized in a final and conclusive judgment in a criminal case

1. Summary of the facts charged in this case

No architect may allow another person to provide an architect with his/her name or lend his/her certificate of qualification to another person. Nevertheless, around May 2015, the Defendant, a certified architect, received KRW 11 million from Nonindicted 1 and Nonindicted 2, and he/she used the Defendant’s name to conduct construction supervision of multi-family housing located in Incheon ( Address omitted) (hereinafter “instant construction”).

2. The judgment of the court below

For the following reasons, the lower court upheld the first instance judgment convicting Nonindicted 1 of the instant facts charged on the grounds that it is recognized that Nonindicted 1 had the Defendant conduct supervision by using the Defendant’s name.

A. In relation to the instant construction project, Nonindicted Party 1 was convicted of the crime and led to the confession of the crime, and the judgment became final and conclusive, on the grounds that Nonindicted Party 1 was guilty of having performed supervision under the name of the architect of the Defendant.

B. Nonindicted 1 prepared a supervision report in the architectural administrative system called “○○○” and gave approval to the Defendant. At that time, Nonindicted 1 did not simply include documents related to completion, but did not directly state the column for each of the matters that the supervisor is required to confirm and check in the supervision report, and only the “comprehensive opinion” column of the supervision report was the column. However, the confirmation and body act in the supervision report as mentioned above is a matter to be stated directly after comparing and checking whether the Defendant, who is the supervisor, was the construction site and the construction of the building as designed, and whether the construction materials or materials are appropriate. As such, Nonindicted 1, the designer of the instant construction, who is the designer of the instant construction, should not put the body in advance.

C. The Defendant submitted a construction supervision log (from May 26, 2015 to January 13, 2016). On the 51st page of the supervision log, it is insufficient to view that the Defendant actually performed supervision at the construction site of this case on the ground of the construction supervision log, since there was no entry of the “special engineer claim”, “cadastral matters and the result of disposal,” and “non-building”, which was drafted over 51 times, and there is insufficient reason to view that the Defendant had actually performed supervision at the construction site of this case on the ground of the construction supervision log. In light of the aforementioned supervision log’s “matters subject to supervision” and “matters subject to supervision, there is no indication at all whether the fire-fighting glass essential to the building of this case was constructed, and whether the Defendant actually supervised it. However, the design drawings of the construction of the instant building of this case clearly emphasized that the fire-proof glass should be installed. However, there was no item that appears to be the most important matters for supervision at the time.

3. Judgment of the Supreme Court

A. Article 10 of the Certified Architects Act prohibits “act of having another person conduct the services of a certified architect using his name” includes not only cases where a certified architect actively solicits or instructs another person to conduct the services of a certified architect using his/her name, but also cases where he/she knows or permits another person to conduct the services of a certified architect by using his/her name or where he/she knows another person to do so (see Supreme Court Decision 2005Do5044, Oct. 28, 2005).

In addition, whether a certified architect performs supervision under Article 10 of the Certified Architects Act shall be determined according to whether a certified architect is actually engaged in another person's business by using the name of the certified architect, regardless of whether a certified architect is in appearance engaged in the business.

B. The burden of proving the facts charged in a criminal trial ought to be borne by a prosecutor, and the conviction ought to be based on evidence of probative value, which makes the judge feel true beyond reasonable doubt, to the extent that there is no reasonable doubt. Therefore, if there is no such evidence, even if there is suspicion of guilt against the defendant, the interest of the defendant should be determined (see Supreme Court Decision 2001Do2823, Aug. 21, 2001, etc.).

The facts recognized in a final and conclusive judgment of another criminal case related thereto in a criminal trial shall constitute a flexible evidence, unless there are special circumstances. However, in cases where it is deemed difficult to adopt a factual judgment in the final and conclusive judgment of the relevant criminal case in light of other evidence submitted in the relevant criminal trial, it may be rejected (see, e.g., Supreme Court Decisions 2002Do3328, Oct. 25, 2002; 201Do15653, Jun. 14, 2012).

C. However, examining the following circumstances revealed through the record in light of the legal principles as seen earlier, the evidence submitted by the prosecutor alone cannot be deemed as proven beyond a reasonable doubt that Nonindicted 1 and Nonindicted 2 performed the supervision of the instant construction by using the Defendant’s name.

1) Nonindicted 1 and Nonindicted 2 were convicted of having committed a crime of violating the Certified Architects Act, which was committed by using the Defendant’s name in the Incheon District Court 2016Kadan7493, and the judgment became final and conclusive. However, the criminal facts of the conviction include the violation of the Framework Act on the Construction Industry, the violation of the Building Act, the forgery of private documents, and the uttering of an investigation document, and the obstruction of the performance of the performance of the duties by fraudulent means, in addition to the violation of the Certified Architects Act, by Nonindicted 1 and Nonindicted 2, including the Defendant, on eight occasions by using the name of seven certified architects. However, Nonindicted 1 only stated whether the Defendant, etc. was leased the certificate of qualification in the course of investigation, and did not stated

2) Unlike other criminal facts in the initial stage of the police investigation and the prosecution investigation, Nonindicted Party 1 denied the part of the violation of the Certified Architects Act, but changed to make a confession from Nonindicted Party 3’s interrogation protocol to the trial after receiving the interrogation protocol of Nonindicted Party 3’s confession from the prosecutor of the investigation. However, Nonindicted Party 1 stated in the first instance trial to the effect that the instant charges

3) While the Defendant, while carrying out supervision over the instant construction, directly, submitted drawings, reports, photographs of the construction site, confirmation documents, written opinions, etc. related to the instant construction project in his name. In light of Nonindicted 1’s prosecutorial statement that it is impossible to know whether the instant construction project is a fire-free or not, and Nonindicted 4’s prosecutorial statement in the first instance trial of the project owner Nonindicted 4, if the Defendant takes charge of supervision over the instant construction on one occasion, the possibility that it was difficult to confirm the fact that the instant construction was not fire-free solely on the site inspection cannot be ruled out.

4) It cannot be acknowledged that Nonindicted Party 1 had performed supervision solely on the ground that the Defendant had performed supervision of the instant construction work in insufficient ways, and Nonindicted Party 1 should be proved to have actually performed supervision. Nonindicted Party 1 stated in the prosecutor’s office and the court of first instance that Nonindicted Party 1 stated in the confirmation column by predicting the confirmation as the designer of the instant construction work. As such, it is difficult to recognize that Nonindicted Party 1 directly performed supervision solely on the basis that Nonindicted Party 1 indicated in the item column of confirmation in the supervision report.

5) Even if there is no indication in the construction supervision report submitted by the Defendant in the lower court, the specific content is specified in the “supervision”. Thus, it cannot be readily concluded that the Defendant did not perform the supervision of the instant construction solely on the ground that there is insufficient entry in the report.

6) In addition to the instant case, both Nonindicted 5, 3, 6, 7, and 8, a certified architect, were finally and conclusively acquitted on the part that Nonindicted 1 and Nonindicted 2 had been engaged in supervision.

D. Ultimately, the lower court convicted the Defendant of the instant facts charged even though the facts acknowledged in the final and conclusive judgment of the criminal case against Nonindicted 1 and Nonindicted 2 are insufficient to recognize the instant facts charged as guilty. In so doing, the lower court erred by failing to exhaust all necessary deliberations, exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on “title of name” as prescribed in Article 10 of the Certified Architects Act. The Defendant’s ground of

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-hee (Presiding Justice)