[1] Relationship between Item 2 of Article 95 of the Framework Act on the Construction Industry and Article 315 of the Criminal Code

[2] Subject of a violation of Article 95 subparagraph 2 of the Framework Act on the Construction Industry

[3] The legal interest and protection of the violation of Article 95-2 of the Framework Act on the Construction Industry and the relationship with Article 356 of the Criminal Code

[1] Article 95 subparagraph 2 of the Framework Act on the Construction Industry, Article 315 of the Criminal Act / [2] Article 2 subparagraph 5 of the Framework Act on the Construction Industry, Article 95 subparagraph 2 of the Framework Act on the Construction Industry / [3] Article 38-2 of the Framework Act on the Construction Industry, Article 95-2 of the Framework Act on the Construction Industry

[1] Supreme Court Decision 2000Do4700 Decided February 9, 2001 (Gong2001Sang, 684) Supreme Court Decision 2007Do2032 Decided July 26, 2007 / [2] Supreme Court Decision 2007Do972 Decided April 24, 2008 (Gong2008Sang, 813)

Defendant 1 and one other

Defendant 1 and Prosecutor

Attorney Park Jae-sik et al.

Seoul Northern District Court Decision 2008No344 decided April 22, 2008

Of the judgment of the court below, the part of the acquittal on the defendants' guilty and the part of the case is reversed, and remanded to the Seoul Northern District Court Panel Division. The prosecutor's remaining appeal is dismissed.

1. First, the prosecutor's grounds of appeal are examined.

A. As to Defendant 1’s violation of Article 95 subparag. 2 of the Framework Act on the Construction Industry

Article 95 of the Framework Act on the Construction Industry provides that a person who commits an act falling under any of the following subparagraphs in bidding of construction works shall be punished by imprisonment with labor for not more than five years or by a fine not exceeding 50 million won, and Article 2 provides that "any person who submits an estimate of another constructor." In full view of the purpose and history of the Framework Act on the Construction Industry intended to promote the proper execution of construction works and the sound development of the construction industry, and the legislative purport of the above penal provision, it is also known in the law of "other constructors" under the same subparagraph or in the provisions of subparagraphs 1 and 3 of the same Article, which are in a parallel relation with the above, to punish the constructors who commit an act detrimental to the fairness of bidding in bidding of construction works, and the special provisions of Article 315 of the Criminal Act that stipulate the obstruction of bidding, and Article 2 subparagraph 5 of the Framework Act on the Construction Industry provides that a constructor shall be limited to a person who violates this Act or other Acts and subordinate statutes.

The gist of this part of the grounds of appeal by the prosecutor is that if the representative of a juristic person, or an agent, employee, or other worker of a juristic person or individual commits an offense under Article 95 of the Framework Act on the Construction Industry, if he/she commits an offense under Article 95 of the said Act with respect to the business of the juristic person or individual, the above defendant may be punished for a violation of Article 95 subparagraph 2 of the Framework Act on the Construction Industry even if he/she does not fall under the above constructor, in light of the purport that the above defendant's act may not be punished for a violation of Article 95 subparagraph 2 of the Framework Act on the Construction Industry. However, in light of the records, the above defendant's act is merely a presentation for the estimate of the awarded constructor, and it is not a submission for the estimate of "other constructor" in collusion with the representative, agent, employee, or other worker of the constructor, and therefore the above defendant who is not

B. As to the assertion of misapprehension of legal principles as to the relationship between violation of Article 95-2 of the Framework Act on the Construction Industry and breach of trust acceptance

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which acquitted the Defendants on the ground that, as long as Article 95-2 of the Framework Act on the Construction Industry applies otherwise on the premise that the Defendants’ special provisions of Article 357 (1) of the Criminal Act, which provide for the crime of taking property in breach of trust, are the special provisions of Article 357 (2) of the Framework Act on the Construction Industry, on the premise that, as long as Article 95-2 of the Framework Act on the Construction Industry applies to the above acts of the Defendants on the premise that they are the special provisions of Article 357 (1) of the Criminal Act which provides for the crime of taking property in breach of trust, they did not constitute the crime of taking property in breach of trust on the grounds that they did not constitute the crime of taking property in breach of trust.

However, such determination by the court below is difficult to accept for the following reasons.

Article 95-2 of the Framework Act on the Construction Industry provides that "any person who acquires or provides property or property benefits by illegal solicitation in violation of Article 38-2 shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 50 million won," and Article 38-2 of the same Act provides that "any ordering person, contractor, subcontractor or interested person shall not acquire or provide property or property benefits by illegal solicitation in connection with the conclusion of a contract or the execution of a construction work." The above provision stipulates that the social legal interests to prevent the irregularities of construction business, not a crime against personal legal interests, are protected, and the subject of such acts and profits accrue to the construction industry shall be the owner, contractor, subcontractor or interested person (hereinafter referred to as "project owner, etc.") and considering all the facts, unlike the crime of breach of trust under the Criminal Act, the crime of violation of Article 95-2 of the Framework Act on the Construction Industry shall not be a special provision for the crime of breach of trust, but shall be a separate crime for each of the above defendants.

The prosecutor's appeal pointing this out is with merit.

C. Therefore, there is a ground to reverse the charge of the crime of taking property in breach of trust against the Defendants. The part of the judgment of the court below which acquitted the Defendants of the charge of taking property in violation of Articles 95-2 and 38-2 of the Framework Act on the Construction Industry (excluding No. 8 and No. 9 in the attached list of the original judgment) and the crime of taking property in breach of trust (Attached No. 8 and No. 9 in the attached list of the original judgment) and one of the crimes of taking property in breach of trust against the Defendants should be sentenced to a single punishment. Accordingly, the above guilty part of the judgment of the court below should be reversed

2. Defendant 1’s ground of appeal is examined.

Defendant 1 presented the grounds of appeal as to the guilty portion of the judgment of the court below on the grounds of violation of the rules of evidence, lack of reasons, and misapprehension of legal principles. However, as seen in the above paragraph (1) above, all convicted parts of the above defendant should be reversed in relation to the prosecutor's grounds of appeal. Furthermore, the court below, upon the above legal principles stated in paragraph (1), needs to re-examine whether the above defendant's act constitutes a crime of taking property in breach of trust in accordance with Articles 95-2 and 38-2 of the Framework Act on the Construction Industry and the Criminal Act. Thus, we reverse this part of the grounds of appeal without

3. Therefore, the part of the judgment of the court below that found the Defendants guilty and the part that found the Defendants guilty in breach of trust is reversed, and that part of the case is remanded to the court below for a new trial and determination. The prosecutor's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)