Several "Act of running a construction business without registration" in violation of the main sentence of Article 9 (1) and subparagraph 1 of Article 96 of the Framework Act on the Construction Industry may be assessed as an inclusive crime.

The main text of Article 9(1) of the Framework Act on the Construction Industry provides that "any person who intends to operate a construction business shall file for registration with the Minister of Land, Infrastructure and Transport according to the type of business prescribed by Presidential Decree." Article 96 Subparag. 1, which is a penal provision, provides that any person who runs a construction business without registration pursuant to Article 9(1) shall be punished by punishment. The act of running a construction business without registration in violation of the above provision is expected to repeat the same act due to the nature of crime elements, and it is reasonable to evaluate all of such acts as one act in close relation with each other, such as where multiple acts repeated as such are conducted in a similar manner at a time and at a close distance to a single and continuous criminal intent.

Article 37 of the Criminal Act, Articles 9(1) and 96 subparag. 1 of the Framework Act on the Construction Industry

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo and 1 other, Counsel for plaintiff-appellant)

Defendant 1 and one other

Prosecutor

Busan District Court Decision 2013No1549 Decided October 11, 2013

All the judgment below is reversed, and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. The main sentence of Article 9(1) of the Framework Act on the Construction Industry provides that "any person who intends to conduct construction business shall register with the Minister of Land, Infrastructure and Transport according to the type of business prescribed by Presidential Decree." Article 96 subparagraph 1, which is the penal provision, provides that a person who conducts construction business without registration pursuant to Article 9(1) shall be punished. The act of conducting construction business in violation of the above provision is expected to repeat the act of the same kind due to the nature of the constituent elements of the crime. If it is reasonable to evaluate the whole act as one act because several repeated acts are conducted in a similar way at a time and place near a single and continuous criminal intent, it shall be punished as a comprehensive crime (see, e.g., Supreme Court Decisions 92Do3405, Mar. 26, 1993; 2002Do1855, Jul. 26, 2002).

2. The court below acknowledged that Defendant 1 operated ○○brid without registering the construction business and performed construction works at △△ University Hospital in total 13 times in total, and Defendant 2 performed construction works at △△△ University Hospital, etc. on a total of 21 occasions without conducting the construction business registration. Since the Defendants ordered construction works at that time from the above △△ University Hospital when operating the construction business without registration, they are ordered by the above △△ University Hospital to perform construction works at that time, and thus their separate crimes are established at each construction. The Defendants’ respective construction works cannot be deemed to have a single and continuous crime. Since each part of the Defendants’ respective construction works are in a relationship of concurrent crimes with each of the separate crimes, it should be determined whether the statute of limitations expires as of the end of each construction work, which is the time when each of the crimes is completed, the judgment of the court below regarding Defendant 1’s charges against Defendant 1 should be made at the time of completion of the statute of limitations expires due to the reasons stated in the judgment of the court below (i) through (ii) or (iii) the charges against Defendant 2).

3. However, the above determination by the court below is not acceptable for the following reasons.

In light of the facts established by the court below and the following circumstances that can be recognized by the records, all of the Defendants’ work ordered by △△ University △△ Hospital for the purpose of remodeling the hospital building, and the construction site is the same as △△ Hospital; Defendant 1’s construction work is all the removal of structures; and Defendant 2’s construction work is the same as the purpose of the establishment of each company operated by the Defendants; and specific construction work performed by the Defendants can be seen as having been paid construction cost by dividing the timing of construction by sector as an accessory work constituting a remodeling project and receiving construction cost depending on the nature and nature of each sector; each charges against the Defendants are continuously conducted for a certain period under the single and continuous criminal intent, and each repeated act is closely related to each other’s work, such as the distance and method of construction work, and similarity between the places and methods, and thus, the damage law benefits from the completion of the statute of limitations under Article 96(1)1 and Article 96 of the Framework Act on the Construction Industry is also the same.

Nevertheless, the court below decided that the statute of limitations has expired since each act of the Defendants committed concurrent crimes, and sentenced to acquittal. In such a case, the court below erred by misapprehending the legal principles on the criteria for the distinction between inclusive crimes and concurrent crimes in violation of the Framework Act on the Construction Industry, and failing to exhaust all necessary deliberations, thereby affecting the conclusion of the judgment.

다만, 피고인 2에 대한 공소사실 중 원심 판시 공소사실 제1항 (21) 기재 2010. 4.경 공사와 제2항 기재 2009. 7. 14.경부터 같은 달 24.까지의 공사는 다른 공사들과는 공사시점 간의 시간적 간격이 상당하고, 공사현장이 ◎◎◎◎병원으로 다르고 공사금액도 상당히 고액이거나, 건설업의 종류가 다른 사정이 보이므로 과연 위 건설공사들도 다른 공사들과 함께 전체로서 1개의 행위로 평가함이 상당한지 여부를 좀 더 면밀히 심리해 볼 필요가 있음을 지적해 둔다.

4. Therefore, the part of the judgment of the court below on acquittal against the defendants should be reversed, and since the part on conviction against the defendants should be reversed in relation to the relation of a single comprehensive crime, all of the judgment below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)