[1] Whether the act of leasing a construction business license under the Construction Business Act requires payment (negative)

[2] Whether an actor, other than a constructor, is subject to each penal provision for a constructor pursuant to Article 63 of the former Construction Business Act (affirmative)

[1] The act of lending a construction business license under Article 16-2 of the Construction Business Act is established when a constructor has another person receive or execute construction works using his/her name or trade name, and it does not necessarily require that the act of lending should be done at a price.

[2] The application of the penal provisions under Article 60 subparagraph 4 and Article 16-2 of the Construction Business Act is clear by the provision itself, but Article 63 of the same Act (amended by Act No. 5137 of Dec. 30, 1995) also provides a joint penal provision that if a representative of a juristic person, or an agent, employee or other worker of a juristic person or individual commits an offence under Articles 59 through 62 in connection with the business of the juristic person or individual, not only shall the offender be punished, but also the juristic person or individual shall be punished by a fine under each corresponding Article. The purpose of this provision is to punish both the offender who committed the offence under each of this Article and the juristic person or individual who is the constructor and both the juristic person or individual who are not the constructor shall be punished by the penal provisions under each of this Article.

[1] Article 16-2 of the Construction Business Act / [2] Article 63 of the former Construction Business Act (amended by Act No. 5137 of Dec. 30, 1995)

[2] Supreme Court Decision 90Do2597 delivered on February 26, 1991 (Gong1991, 1121), Supreme Court Decision 91Do801 delivered on November 12, 1991 (Gong1992, 157), Supreme Court Decision 92Do2324 delivered on November 10, 1992 (Gong193, 163), Supreme Court Decision 95Do230 delivered on May 26, 1995 (Gong195Ha, 2307), Supreme Court Decision 95Do2083 delivered on February 23, 1996 (Gong196, 1173)

Defendant 1 and one other

Defendants

Attorney Lee Jong-chul et al.

Daejeon District Court Decision 96No1594 delivered on February 5, 1997

All appeals are dismissed.

The grounds of appeal are examined.

1. Examining the facts charged against the Defendants in violation of the Construction Business Act in light of the evidence duly admitted by the court of first instance, the court below did not err in the rules of evidence, such as the theory of lawsuit, in the judgment below.

2. The act of lending the name of a construction business license under Article 16-2 of the Construction Business Act is established when a constructor causes another person to receive or execute construction works using his name or trade name, and it does not necessarily require that the act of lending should be done at a price. Thus, in the opinion that is contrary to the above, the court below should not accept a question about the fact that the court below did not disclose the contents of the return for the act of lending the name of this

3. Article 60 subparagraph 4 of the Construction Business Act and Article 16-2 of the same Act are clearly applicable to a constructor. However, Article 63 of the same Act (amended by Act No. 5137 of Dec. 30, 1995) provides that if a representative of a juristic person, or an agent, employee or other worker of a juristic person or individual commits an offense under Articles 59 through 62 in connection with the business of the juristic person or individual, not only shall the offender be punished, but also the juristic person or individual shall be punished by a fine under each relevant Article. The purpose of this provision is to punish both the offender who commits an offense under each of this Article and the juristic person or individual who is the constructor, not the constructor, also the offender is subject to the penal provisions of each of this Article (see Supreme Court Decisions 90Do2597, Feb. 26, 199; 9Do2390, May 26, 195).

In this regard, the court below is just in maintaining the judgment of the court of first instance which has been punished in accordance with the joint penal provisions under Article 63 of the same Act with respect to Defendant Usung Construction Industry Co., Ltd., which is a person who committed the act of lending the name of the instant construction business license, pursuant to Article 60 subparag. 4 of the same Act, and there is no error in the misapprehension of legal principles with respect to the subject of the act of lending the name of the construction business, the identity of the person who committed the act of borrowing the name of the instant construction business license, or the joint penal provisions as in the judgment of the court below.

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Song Jin-hun (Presiding Justice)