Article 43 of the former Certified Architects Act (amended by Act No. 3767 of Dec. 31, 1984) and a sentence of acquittal shall be pronounced.

The deletion of Article 43 of the former Certified Architects Act (amended by Act No. 3767 of Dec. 31, 1984) does not appear from reflective consideration that it is unreasonable to take the former person who has established an architect office entrusted with investigation and inspection duties as the subject of punishment, but it is now unfair to take the former person who has established an architect office as the subject of punishment. The former Certified Architects Act itself has prepared a separate penal provision in order to revise the system of punishment laws and regulations, and even if Article 43 of the former Certified Architects Act has been repealed, it shall not be sentenced to acquittal on the ground that the punishment has been abolished.

Article 326 subparagraph 4 of the Criminal Procedure Act; Article 43 of the former Certified Architects Act (amended by Act No. 3767 of Dec. 31, 1984); Article 39 subparagraph 7 of the Certified Architects Act

Defendant

Prosecutor

Seoul Criminal Court Decision 84No4075 delivered on February 5, 1985

The judgment of the court below is reversed, and the case is remanded to the Panel Division of the Seoul Criminal Court.

We examine the prosecutor's grounds of appeal.

1. According to the reasoning of the judgment below, the court below found that the defendant, as the architect of the architect office of Dongdaemun-gu Seoul Metropolitan Government on November 4, 1982, prepared one building completion investigation and inspection report of 331-67 house located in Dongdaemun-gu 331-25, Dongdaemun-gu, Dongdaemun-gu, Seoul, and entered the building area of 70.25 square meters at 65.25 square meters, 135.50 square meters at 130.50 square meters, and 53 percent at 49 percent by submitting a false official document to the construction and public official in charge of the building of Dongdaemun-gu Seoul Metropolitan Government, Dongdaemun-gu, Seoul Metropolitan Government, and submitted it to the person who established the architect office in charge of the investigation and inspection affairs entrusted by the Minister of Construction and Transportation, and caused the defendant to be a public official in charge of preparing a false official document and the crime of uttering, and thus, it constitutes grounds for acquittal under Article 326 of the Criminal Procedure Act.

2. In general, in a case where a penal provision on a certain act is repealed, if it was repealed from the reflective consideration that it would be subject to punishment in the previous case due to the change of the legal ideology, it constitutes a case where a sentence is repealed due to the repeal or repeal of the law after the crime under Article 326 subparagraph 4 of the Criminal Procedure Act, and thus, it shall be subject to acquittal. However, it shall not be subject to acquittal in a case where the penal provision is repealed due to the social and economic changes at the time of the enactment of the penal provision

According to the provisions of Article 23-2 (3) of the Certified Architects Act, the Minister of Construction and Transportation may entrust the founders of certified architect offices with the investigation and inspection, etc. necessary for construction administration under the Presidential Decree, and according to the provisions of Article 43 of the Certified Architects Act before the removal by Act No. 3767 of December 31, 1984, the founders of certified architect offices who are engaged in the investigation and inspection, etc. entrusted by the Minister of Construction and Transportation under Article 23-2 (3) of the said Act shall be regarded as public officials in the application of penal provisions under the Criminal Act and other Acts. The above Acts of the Certified Architects Act, instead of deleting Article 43, newly incorporated Article 39 subparagraph 7 of the said Act and conducted the investigation or inspection under Article 23-2, shall be punished by imprisonment with prison labor or a fine not exceeding 5 million won, if any person who falsely receives, demands, promises, or demands or promises any third party to provide any unfair money or goods in connection with the performance of his/her duties.

In consideration of the above provisions after the amendment, the deletion of Article 43 of the former Certified Architects Act does not appear from the reflective consideration that it is unreasonable to make the former person subject to punishment for the acts of violation by the founders of architectural firms entrusted with investigation and inspection affairs, but it is nothing more than the abolition of the Criminal Act by preparing separate penal provisions in the former Certified Architects Act itself and arranging the system of punishment regulations. Thus, with respect to the acts of violation falling under the above penal provisions of the amended Certified Architects Act, even if Article 43 of the amended Certified Architects Act was repealed prior to the amendment, it cannot be sentenced to acquittal on the ground that the punishment was abolished.

3. As to the instant case, in preparing a protocol of construction of a building and a protocol of inspection entrusted by the Defendant as the time when the original trial was conducted, the act of entering the building area and building-to-land ratio falsely and submitting a false document to a public official in charge of official in charge as such constitutes a false investigation and inspection, thereby satisfying the penal requirements under Article 39 subparag. 7 of the Certified Architects Act. As such, the lower court’s order of acquittal on the ground that the act of the Defendant constitutes abolition of Article 43 of the former Certified Architects Act, and thus, did not err by misapprehending the legal doctrine on the abolition of punishment.

In comparison with the punishment of penal provisions under the Certified Architects Act after the revision of the new corporation, the punishment of the crime of preparing false official documents and the crime of uttering under the former Certified Architects Act shall be deemed to be the subject of Article 39 (7) of the Certified Architects Act.

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

Justices Lee Il-young (Presiding Justice)