[1] The meaning of "the owner and the construction executor who violate the provisions of Article 31 or 32 of the Building Act" under Article 80 subparagraph 4 of the Building Act

[2] The case holding that the construction owner, who is not the construction executor, cannot be held liable for a violation of Article 80 subparagraph 4 of the Building Act, in case where the damage, such as rupture, etc., occurs to the adjacent building while destroying soil without taking sufficient safety measures in the construction work and destroying soil

[1] Article 31(1) of the Building Act imposes a duty to take measures necessary to prevent danger to the excavated part in the case of developing a building site or excavating land accompanied by a construction work on the contractor. Article 32(1) of the same Act imposes a duty to take measures, such as landscaping, on the contractor who constructs a building site exceeding a certain scale in accordance with the prescribed standards. Article 80 Subparag. 4 of the same Act provides that a person who violates such duty shall be punished for the owner and the contractor who violate such duty. Thus, Article 80 Subparag. 4 of the same Act provides that "the owner and the contractor who violate the provisions of Article 31 or 32 of the same Act" shall be construed as "the construction executor who violates the provisions of Article 31 or the owner of the building in violation of the provisions of Article 32".

[2] The case holding that a construction owner, who is not the contractor, may not be held liable for a violation of Article 80 subparagraph 4 of the Building Act, in case where he did not take sufficient safety measures in the construction work and caused damage such as equal generation of heat in neighboring buildings while destroying soil

[1] Articles 31(1), 32(1), and 80 subparag. 4 of the Building Act / [2] Articles 31(1) and 80 subparag. 4 of the Building Act

Defendant

Prosecutor

Busan District Court Decision 2004No802 delivered on June 23, 2004

The appeal is dismissed.

We examine the grounds of appeal.

Article 2 (1) 12 of the Building Act defines the owner as "person who executes construction work on his/her own with a field manager" or as "person who executes construction work under subparagraph 4 of Article 2 of the Framework Act on the Construction Industry" and classify the owner and the construction executor as "person who executes construction work under subparagraph 16 of the same paragraph". In Article 31 (1) of the same Act, the construction executor shall, in cases where he/she creates a site or excavates land attached to a construction work, take measures to prevent danger, preserve an environment, or take other necessary measures against the excavated part at the construction site and put a notice on the owner at the construction site," in Article 32 (1) of the same Act, "the owner who performs construction work on a site with an area of 200 square meters or more" shall be punished as "the owner who violates the duty of construction on his/her own pursuant to the provisions of Article 32 (1) of the same Act or by the provisions of Article 31 of the same Act, and the owner shall be punished as "the owner shall take other necessary measures in accordance with the provisions of Article 301 of the same Act."

According to the reasoning of the judgment of the court below, the court below affirmed the judgment of the court below that the defendant's primary facts charged in this case that the defendant caused damage such as rupture in the adjacent building while excavating land without taking sufficient safety measures, and caused damage to the owner and construction executor who violated the provisions of Article 31 or 32 of the "Article 80 subparagraph 4 of the Building Act" should be interpreted as "the construction executor who violated the provisions of Article 31 or the provisions of Article 32" or "the owner and construction executor who violated the provisions of Article 31", since the construction executor who violated the provisions of Article 31 of the Building Act is not "the construction executor who violated the provisions of Article 31" but "the construction executor who violated the provisions of Article 31".

Examining the reasoning of the judgment below in light of the records and the above legal principles, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the interpretation of Articles 31(1) and 80 subparag. 4 of the Building Act. The ground of appeal cannot be accepted.

On the other hand, although the prosecutor submitted a written appeal to the effect that he/she is dissatisfied with the part of the judgment of the court below regarding the conjunctive charges of this case, he/she did not state the grounds of appeal as to that part in the grounds of appeal. Therefore

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

Justices Kim Yong-dam (Presiding Justice)