[Supplementary Opinion] In the former Construction Business Act (amended by Act No. 5137 of Dec. 30, 1995), which has been interpreted by the Supreme Court that an actor, who is not a business owner, etc., is also subject to the penal provisions, unlike the former penal provisions that limit the subject of the penal provisions to the business owner, etc., and that in the penal provisions that punish the subject of the violation, the former Building Act does not limit the subject of the penal provisions to the subject of the penal provisions. In addition to the above penal provisions (Article 5 subparagraph 3), the former Building Act does not limit the subject of the application, but limits the subject of the penal provisions to the subject of the application of the penal provisions, such as the subject of the penal provisions (Article 54, Article 55 subparagraph 1, 2, and 4). However, in cases where the subject of the penal provisions or the prohibition provisions are limited to the subject of the penal provisions on behalf of the subject of the legislative owner, it is meaningful that the subject of the penal provisions does not limit the subject of the penal provisions to the subject of the penal provisions.

[Dissenting Opinion] Joint penal provisions, such as the former Construction Business Act (amended by Act No. 5137 of Dec. 30, 1995), which have been interpreted by the Supreme Court that an actor who is not a business owner, etc. is also subject to the penal provisions, are not provided for the scope of a person subject to the penal provisions separate from the preceding penal provisions under the penal provisions. However, joint penal provisions under Article 57 of the former Building Act, as provided for in Articles 54 through 56 of the same Act, have no separate provision regarding a person subject to the penal provisions under Articles 7-2 and 7-3 and 29 of the same Act, which have already been limited to the scope of a person subject to the penal provisions under the former Building Act, in view of the fact that there is no clear interpretation of the penal provisions under the former Building Act and the former penal provisions under the same Act, and there is no clear provision that there is no clear basis for the penal provisions under the same Act, unlike the latter penal provisions under the same Act, to interpret the same as the latter.

A. The penal provisions of Articles 54 through 56 of the former Building Act (amended by Act No. 4381 of May 31, 1991 and enforced on June 1, 1992; hereinafter the same shall apply) limit the person subject to the application to a specific business owner, such as the owner, construction supervisor, and construction executor. The joint penal provisions of Article 57 of the same Act extend the person subject to the application to a person who actually executes the pertinent business in order to secure effectiveness of the above penal provisions when there is a person who is not a business owner but actually performs the pertinent business, so that such person commits a violation of the above penal provisions in relation to the pertinent business, the penal provisions of the offender may be punished under the said joint penal provisions, as well as the penal provisions of the business owner who is the main body of the violation.

In some contrast, since the joint penal provisions of Article 57 of the former Building Act cannot be interpreted as a penal provision, the opinion of Supreme Court Decision 90Do1219 Decided October 12, 1990, Supreme Court Decision 92Do163 Decided July 28, 1992, and Supreme Court Decision 92Do3207 Decided February 9, 193, which held that the actual actor cannot be punished on the basis of the above provision, shall be amended to the extent that it conflicts with this.

B. Examining the evidence adopted by the court below and the court below in light of the above legal principles and records, it is just that the apartment construction corporation of this case replaces the above defendants with co-offenders in violation of the Building Act by applying Articles 57, 55, 4, and 10 of the former Building Act, Article 30 of the Criminal Act, and Article 30 of the Criminal Act, etc. on the ground that it violated the duty of safety assurance of building structure, and there is no error in the misapprehension of the rules of evidence as pointed out by the court below and the misapprehension of legal principles as to the person subject to the application of the penal provisions of Article 55, Item 4 of the former Building Act, Article 55, Article 5, Item 4 of the former Building Act, Article 55, Item 4 of the former Building Act, Article 55, Item 4 of the same Act, Article 4 of the same Act, and Article 30 of the Criminal Act as co-offenders.

This ground of appeal cannot be accepted.

2. As to Defendant 4’s ground of appeal

In full view of the relevant laws and regulations including the former Building Act and the Certified Architects Act (amended by Act No. 5013, Dec. 31, 1994), the construction supervisor under the former Building Act has a duty to confirm and guide the construction of the building so that the building has a safe structure under Article 10 of the former Building Act, and the construction supervisor intentionally violates his/her duty shall be subject to punishment under Article 55 (4) of the same Act.

In the same purport, the court below legitimately recognized that Defendant 4, who is the supervisor of the apartment building of this case, performed false supervision as stated in the judgment of the court below on the above apartment building and underground parking lot, and found the above defendant to be punished as a violation of Article 5 subparagraph 4 and Article 10 of the former Building Act, and there is no error in the misapprehension of legal principles on the application of the above legal provisions and the principle of legality as pointed out.

This ground of appeal cannot be accepted.

3. As to the Prosecutor’s Grounds of Appeal

The lower court determined that Defendant 1 cannot be held liable for the crime of violating the Building Act, in the purport that Defendant 1’s representative director, who is the contractor of the apartment of this case, was not thoroughly supervised the construction work, and that there was a general and abstract negligence in command and supervision, and that the direct direction of the instant crime was not acknowledged, or that he was not aware of it, implied or neglected.

Although the reasoning of the judgment of the court below is somewhat inappropriate, the above judgment is just in accordance with the opinion of the Supreme Court (see Supreme Court Decision 96Do263 delivered on April 9, 1996), and there is no error of law by misunderstanding the legal principles as pointed out therein.

The grounds of appeal cannot be accepted.

4. Conclusion

Therefore, all appeals by Defendant 2, Defendant 3, and Defendant 4 and the Prosecutor’s appeals by Defendant 1 are without merit. Therefore, the judgment above is dismissed, except for the dissenting opinion by Justice Jeong-ho, Justice Shin Sung-sung, Justice Shin Sung-sung, Justice Lee Yong-hoon, and Justice Cho Cho Cho-young as to the judgment on the modification of the case under paragraph (1), and there is a concurrence with the Majority by Justice Park Jong-chul and Justice Lee Don-hee.

5. Opinion concurring with the Majority by Justice Park Jong-chul and Justice Lee Don-hee is as follows.

Article 57, which is a joint penal provision of the former Building Act, provides that "if a representative of a juristic person, or an agent, employee or other worker of a juristic person or natural person commits an act falling under the provisions of Articles 54 through 56 in connection with the business of such juristic person or natural person, not only shall the offender be punished, but also the juristic person or natural person shall be punished by a fine

The Supreme Court has held that Article 63 of the former Construction Business Act (amended by Act No. 5137 of Dec. 30, 1995), Article 55 of the former Urban Gas Business Act (amended by Act No. 4541 of Mar. 6, 1993), Article 71 of the former Industrial Safety and Health Act (amended by Act No. 5248 of Dec. 31, 1996), Article 29 of the former Petroleum Business Act (amended by Act No. 3645 of Dec. 31, 1982), Article 36 of the former Construction Business Act (amended by Act No. 4561 of Jun. 11, 1993), Article 9 of the former Commercial Act (amended by Act No. 5137 of Dec. 30, 1995), Article 90 of the former Urban Gas Business Act (amended by Act No. 4541 of Aug. 11, 1990), and Article 97 of the former Act, etc.

In the case of statutory penal provisions other than the above former Building Act, the former Building Act does not limit the subject of application to the business owner, etc., and it does not limit the subject of application separately from the penal provisions of Article 55(3) of the former Building Act. However, in addition to the penal provisions of Article 55(3), the former Building Act does not limit the subject of application, but limits the subject of application to the business owner, etc. (Article 54, Article 55 subparag. 1, 2, and 4, etc.), even if there are cases where the penal provisions of Article 55(1), 55(1), 2, and 4, etc. are applicable only to the joint penal provisions of Article 57 of the former Building Act.

This is because, in cases where the former provisions or prohibition provisions limit persons subject to punishment to business owners, etc., even if they do not limit persons subject to punishment again, they are clearly limited to business owners, etc., and thus, they are not limited in the penal provisions again. Meanwhile, if the former provisions or prohibition provisions limit persons subject to punishment, they are not limited to business owners, etc., they can only limit the persons subject to punishment to those subject to punishment. Such difference is due to the legislative technical aspect, and in any case, there is no substantial difference in the fact that the persons subject to the penal provisions concerning the violation of the provisions or prohibition provisions are limited to business owners, etc., in each case, there is no difference in the meaning of the same type of penal provisions as to each case. The legislative purport of the provision that "offenders" in the joint penal provisions is to ensure the effectiveness of the penal provisions by failing to apply the penal provisions in spite of the fact that the persons subject to punishment is limited to business owners, etc.

In addition, while interpreting the joint penal provisions of other Acts as stated in the above decisions, it would be against the unification of statutory interpretation, and it would result in extremely unreasonable result in the case where an executive officer such as the managing director or the managing director actually takes the lead in the construction instead of participating in the construction.

As seen above, if the text and purport of the joint penal provisions of the former Building Act and the contents of the provision on duties or prohibition, and the joint penal provisions are related to each other, in cases where persons subject to the penal provisions are limited to business owners, etc., it is not unreasonable to interpret the joint penal provisions as the penal provisions of the offender in addition to business owners, and their meaning and contents are not unclear, and such interpretation cannot be deemed contrary to the principle of no crime without the law. In order to punish an offender under the joint penal provisions of the former Building Act, the Dissenting Opinion should revise the provision as "other than the offender who is in charge of punishment of each corresponding provision," such as the joint penal provisions of Article 260 of the Act on the Election of Public Officials and the Prevention of Unlawful Election Act. However, the language and text of the joint penal provisions as mentioned above clearly indicate the intent of the offender more than the language and text of the existing joint penal provisions, so it is deemed as being advanced in the legislative technology, but it is not possible to interpret the existing joint penal provisions as the penal provisions of the offender just because

In addition, the grounds for criminal punishment is not a law, but a change in the precedents on Article 57 of the former Building Act is nothing more than confirming the contents of the legal provision, and thus, it cannot be deemed that the above legal provision itself is changed. Thus, according to the precedents at the time of the act, the act that was interpreted as not subject to punishment is punished based on the above legal provision that was confirmed by the change in the precedents at the time of the act, and thus, it cannot be deemed as contrary to the principle

6. Dissenting Opinion by Justice Jeong-ho, Justice Shin Sung-sung, Justice Lee Yong-hoon, and Justice Cho Cho Jong-young as to the nature of joint penal provisions under Article 57 of the former Building Act is as follows.

The majority opinion argues that the joint penal provisions of Article 57 of the former Building Act also include minor differences between the joint penal provisions of other Acts, such as the former Construction Business Act, and the contents of other Acts, which the majority opinion cited in the majority opinion, interpreting the joint penal provisions of the former Building Act as in the joint penal provisions of other Acts as in the same manner as in the joint penal provisions of the same other Acts as in the same manner as in the joint penal provisions of the same Act, thereby retroactively modifying the previous Supreme Court precedents cited in the majority opinion of the Supreme Court Decision 90Do1219 Decided October 12, 190, but we cannot agree with

First, the joint penal provisions of other Acts cited in the majority opinion do not stipulate the scope of persons subject to punishment separately from the provision on the duty or prohibition preceding it in the penal provision. On the other hand, the joint penal provisions of Article 57 of the former Building Act, in Articles 54 through 56 of the same Act, which are the penal provisions, shall be punished against persons who violate the provisions of Articles 7-2, 7-3, and 29 of the same Act, where the scope of persons subject to punishment has already been restricted to a project owner, etc., without any separate provision as to the persons subject to punishment (Article 55 subparagraph 3 of the same Act). However, if the scope of persons subject to punishment is not clearly restricted in the provision on the duty or prohibition, it is clearly different from the penal provisions of other Acts by limiting the person subject to punishment from the penal provisions itself to the project owner, designer, project supervisor, or contractor (Article 55 subparagraph 4 of the former Building Act). Accordingly, the penal provisions of other Acts have been interpreted as a person subject to punishment as stated in the above.

Second, Article 5 of the Act on Special Measures for the Punishment of Environmental Offenses provides that "if a representative of a corporation, or an agent or employee of, or any other person employed by, a corporation or an individual commits an offence under Article 2 or 3 in connection with the business affairs of the corporation or individual, not only shall such offender be punished, but also the corporation or individual shall be punished accordingly, and the penal provisions of the former Building Act are different from the penal provisions of the same Act." However, Article 2 of the same Act provides that if a person who causes harm to the life or body of the public or causes contamination of water sources and causes harm to the public, it shall be punished by a fine under Article 7 of the former Building Act and Article 7 of the same Act shall be punished by a fine under Article 7 of the same Act and the same Act shall be punished by a fine under Article 7 of the same Act and the same Act shall also be punished by a fine under Article 7 of the same Act regardless of such unlawful discharge of pollutants, or a person who commits an offence under Article 7 of the same Act shall be punished by a certified judicial scrivener, therefore, the same provision shall not apply.

Third, the principle of clarity, which is the major principle of criminal law, is the basic principle of criminal law in order to protect the legal stability of the people and ensure predictability for the people by prescribing crimes and penalties as Acts, and by guaranteeing the freedom and rights of the people from the arbitrary exercise of the state's penal authority. One of its contents is the principle of legal interpretation that the interpretation of penal law should be strict as possible. However, as in the joint penal provisions of the former Building Act, it is only "in addition to the punishment of defined actors," and it is not clear whether to newly determine the punishment of an offender in the above provision, and it is not an interpretation that is the basis of criminal punishment in the above provision is inconsistent with the principle of no punishment without law.

Fourth, even though it is a precedent of the highest court like our legal system, it does not become a court (court). However, in the actual life of the highest court, especially in the case of the highest court, the role of providing the guidance of action to the people with the binding force in the case of the highest court, while considering that the Supreme Court precedents that the majority opinion intends to change, such as Supreme Court Decision 90Do1219 Decided October 12, 190, also have both the function of resolving the case by final judgment and the institutional function of unification of statutory interpretation, it shall be interpreted consistently that the joint penal provisions of the former Building Act cannot be the basis for punishment of the actor, and thus, it can be said that such interpretation has become a de facto binding legal interpretation. However, in order to change the above Supreme Court precedents in a way unfavorable to the people in the purport that it is intended to interpret it with the joint penal provisions of other Acts, the spirit of the Constitution and the principle of prohibiting retroactive legislation in order to guarantee the people's legal stability and predictability.

Therefore, if an executive officer or a member of a company (5) under Article 260 of the Act on the Election of Public Officials and the Prevention of Election Malpractice intends to punish an offender based on the above joint penal provisions, if he/she or a member of the company commits an offense provided for in this Chapter (as referred to in Chapter 16 of the same Act, which provides for penal provisions), with respect to his/her duties, the company concerned shall be deemed to have committed the offense, and the offender shall be punished by the fine provided for in the corresponding Article, in addition to the punishment provided for in the corresponding Article, and the relevant company, etc. shall be deemed to have been punished by the fine provided for in the corresponding Article." Nevertheless, it is possible to revise the precedents consistently maintained in order to interpret the joint penal provisions of the former Building Act, the contents of which are unclear, as the grounds for punishment of the offender, in order to interpret the joint penal provisions of the former Building Act as the legal function interpretation method, even if it is correct, at any time, it cannot be said that the exercise of penal rights against the people has lost any greater freedom and rights of the people.

Therefore, in this case, Defendant 2 and Defendant 3 should not be punished on the basis of the joint penal provisions of the former Building Act.

1. The case is remanded to the Supreme Court for further proceedings consistent with this Opinion. The case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.