[2] Where a constructor imposes penalty surcharges on subcontracting a specialized construction work to an unqualified person, the case holding that the statute should be applied at the time of the act, unless there are special provisions as to whether the statute was amended more unfavorable than the statute at the time of the act and the statute was applied to the specific imposition criteria

[2] The case holding that where a constructor imposes a penalty after the enforcement of the Framework Act on the Construction Industry (amended by Act No. 5965 of Apr. 15, 1999) on subcontracting a specialized work among construction works for which he/she has contracted at the time of the enforcement of the former Construction Business Act (amended by Act No. 5230 of Dec. 30, 196), the imposition of a penalty shall be in accordance with Article 82 (2) of the Framework Act on the Construction Industry (amended by Act No. 5965 of Apr. 15, 199), and the imposition of a penalty shall be in favor of the applicable person pursuant to Article 5 (1) of the Addenda of the Framework Act on the Construction Industry (amended by Act No. 5230 of Apr. 15, 1999), and there is no special provision on the application of the Enforcement Decree at the time of the disposal and

1. In light of the provisions of Article 13 of the Constitution, barring special provisions such as establishing a transitional provision that the new law shall apply in favor of the persons subject to the amendment, the former Act before the amendment, not the new law after the amendment, should be applied (see Supreme Court Decisions 82Nu1, Dec. 28, 1982; 83Nu383, Dec. 13, 1983, etc.).

Article 50(2)3 and Article 51(1) of the former Enforcement Decree of the Construction Industry Act (amended by Act No. 5230, Dec. 30, 1996); [Attachment Table 6] Article 49(1) [Attachment Table 6] 3 of the Enforcement Decree of the Construction Industry Act (amended by Presidential Decree No. 1436, Aug. 23, 1994; 50,000,000 won and KRW 120,000,000,000,000 won and KRW 50,000,000,000,000 won and KRW 50,000,000,000,000 won and KRW 50,000,000,000,000,000 won and KRW 50,000,000,000,00.

However, compared with Articles 81 through 83 of the former Act and the former Act on Administrative Dispositions, two of the eight grounds for the correction order, etc. stipulated in Article 81 of the former Act, upon the amendment of the former Act into a new Act, was deleted. As seen earlier, the penalty surcharge was reduced by 50% to 30% in the case of a violation of the Act stipulated in Article 82(2) of the former Act, and the new Act was amended in favor of the persons subject to the new Act due to the removal of three of the ten grounds for the revocation of the license, etc. stipulated in Article 83 of the former Act. In light of Article 13 of the Constitution, etc. which prohibits retroactive legislation, it is reasonable to deem that Article 5(1) of the Addenda of the former Act, stating that the amended provisions of the new Act apply to an administrative disposition in favor of the persons subject to the new Act, is a retroactive legislation that stipulates that the new Act shall apply to an act of a favorable amendment.

In this regard, in a case where a constructor imposes a penalty after the enforcement of the new Act on subcontracting a specialized construction work among construction works for which he/she received a contract at the time of the enforcement of the Construction Business Act to a person who is not qualified to perform the said specialized construction work, the penalty surcharge shall be imposed pursuant to Article 82(2) of the new Act, which is amended favorably to the subject under Article 5(1) of the Addenda of the new Act, and the specific imposition standard shall be governed by the Enforcement Decree at the time of the disposition, since there is no special provision on which Enforcement Decree shall be applied, since it constitutes a case where the Enforcement Decree at the time

The court below is just in its decision that the defendant subcontracted to a constructor without a license for a specialized construction business at the time of the implementation of the Construction Business Act on December 22, 199 as to the disposition of this case which was imposed by applying Article 82(2)2 and Article 84 of the New Act, which was the Act and subordinate statutes at the time of the disposition of December 22, 199, and Article 80(1) [Attachment 6] b) 4 of the Enforcement Decree of the New Act, on the ground that the enforcement decree at the time of disadvantageous disposition is applied not to the person who is favorable to the person subject to the application, and there is no error of misapprehending the legal principles as to the principle of prohibition of retroactive effect on the restriction of property right,

The grounds of appeal pointing out this issue are rejected.

2. In light of Article 51(1) of the Construction Business Act, Article 84 of the New Act, the form and content of the delegation of authority, Article 49(1) of the Enforcement Decree of the Construction Business Act, and Article 80(1) of the Enforcement Decree of the Construction Business Act, each provision of Article 49(1) [Attachment 6] of the Enforcement Decree of the Construction Business Act or Article 80(1) [Attachment 6] of the Enforcement Decree of the New Act constitutes a law that detains the general public or the court, and it cannot be said that it is a discretionary rule that sets forth the guidelines for administrative affairs inside

Therefore, the argument that the application of the new law and the Enforcement Decree of the new law to the disposition of this case by the defendant is not contrary to the principle of retroactive prohibition, but merely an issue of deviation or abuse of discretionary power is not accepted as an independent opinion.

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)