Validity of a construction business transfer and takeover contract concluded in the manner of neglect of a construction business license lending, and whether it constitutes illegal consideration

In full view of the purport of the provisions of Article 7-4, Article 38 subparag. 8, and Article 51 subparag. 9 of the former Construction Business Act (amended by Act No. 3501 of Dec. 31, 1981), a construction business license loan agreement is null and void as a contract violating the same Act, and a construction business license agreement entered into in the manner of excluding a construction business license loan agreement is also null and void as an evasion of the law to avoid the application of the above provisions, which are mandatory provisions, is null and void as an evasion of the law to avoid the application of the said provisions, but the said contract itself does not violate good morals and other social order, and thus,

Article 7-4 of the former Construction Business Act (amended by Act No. 3501 of Dec. 31, 1981); Article 746 of the Civil Act

Supreme Court Decision 80Da145 Delivered on April 8, 1980, 80Da15 delivered on July 28, 1981

Plaintiff

Gawon Construction Co., Ltd., Counsel for the defendant-appellant and the plaintiff-appellant

Daegu High Court Decision 87Na460 delivered on February 4, 1988

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

With respect to No. 1:

According to the court below's decision, the non-party, who was the representative of promoters of the defendant company established at the time of establishment, agreed to transfer the construction business license from the plaintiff on May 14, 1981 to the plaintiff company for the purpose of using it in the defendant company to be incorporated, separately from the construction business under the former Construction Business Act, which was enforced at the time of the lease of the plaintiff's construction business license. However, since the above non-party and the plaintiff could transfer the construction business license to the transferee by transferring the construction business license, the above non-party and the plaintiff should transfer the construction business license of this case to the defendant company under the former Construction Business Act and transfer the construction business license of this case to the defendant's name on the one-year anniversary of the above contract date to the plaintiff. After the defendant completed the construction business registration for the purpose of selling building materials on June 8 of the same year, the court below did not find the facts that the above construction business license of this case was transferred to the Mayor of Busan Metropolitan City by obtaining the above construction business license of this case.

The issue is groundless.

With respect to the second ground:

Article 38 subparag. 8 of the former Construction Business Act (amended by Act No. 3501 of Dec. 31, 1981) provides that a person who lends or borrows a construction business license shall cancel the license (Article 38 subparag. 8 of the same Act) and a person who uses the leased or leased a construction business license to another person shall be punished by imprisonment for not more than one year or by a fine not exceeding 1,00,000 won (Article 51 subparag. 9 of the same Act). The construction business license provides that a construction business license shall be transferred only when it is transferred together with the transfer of the relevant construction business or the merger of the juristic person which is the constructor (Article 7-4 of the same Act). In full view of the above provisions, a construction business license loan agreement is null and void as a contract violating the same Act and is concluded in the manner of protection of a construction business license loan, and it does not violate good morals and other social order, and thus, it does not constitute an evasion of the construction business license.

The judgment of the court below is in accordance with the above legal principles and the decision of the court below that rejected the defendant's assertion of illegal consideration is just and there is no error of law such as theory

The issue is groundless.

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 on the bench.

Justices Lee Chang-chul (Presiding Justice)