In a case where there is a reason to take into account the mitigation of the period of suspension of business for a constructor, etc. who falls short of the standards for registration of construction business, but fails to reduce the period of suspension of business by misunderstanding that it does not fall under such a reason, whether the disposition of suspension of business is illegal

Article 80 (1) [Attachment 6] and (2) of the former Enforcement Decree of the Framework Act on the Construction Industry (Amended by Presidential Decree No. 23282, Nov. 1, 201)

tin Construction Co., Ltd

Jeonnam-do Governor

Gwangju High Court Decision 2012Nu385 decided July 19, 2012

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

Article 80(1) [Attachment 6] and Article 80(2) of the former Enforcement Decree of the Framework Act on the Construction Industry (amended by Presidential Decree No. 23282, Nov. 1, 201; hereinafter “Enforcement Decree”) which provide for the standards for the disposition of suspension of business for constructors, etc. who fall short of the standards for the registration of construction business and the matters concerning the aggravation and mitigation of the period of suspension of business, and Article 80(1) [Attachment 6] and Article 80(2) of the same Enforcement Decree of the same Act (hereinafter “Enforcement Decree”) have room for discretionary discretion to increase or reduce the period of suspension of business within a half limit by taking into account the motive, content, frequency, etc. of the act of violation. Thus, where there exist extenuating circumstances for mitigation of the period of suspension of business, it cannot be readily concluded that the disposition of suspension of business has been unlawful, but if the disposition of suspension of business was not taken into account even if there were such reasons, or if the remaining period of suspension of business was not reduced due to the said reasons, it cannot be deemed unlawful.

The court below is just in light of the above legal principles and held that the disposition of this case, which the defendant considers the deficiency period as eight months even if it did not reach four months, was exceeded the scope of discretion without considering the grounds for the mitigation of the period of suspension of business. It did not err in the misapprehension of legal principles as to deviation and abuse of discretion, thereby affecting the conclusion of judgment.

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

Justices Kim Yong-deok (Presiding Justice)