Composition Construction Co., Ltd. (Attorney Nam-tae, Counsel for defendant-appellant)

Do Governor of Gyeonggi-do;

December 22, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's business suspension disposition against the plaintiff on March 6, 2017 shall be revoked for four months.

1. Details of the disposition;

가. 천일종합건설 주식회사(본래 상호가 ‘구성건설 주식회사’이었으나 2014. 3. 25. 변경등기를 마쳤다, 이하 ‘천일종합건설’이라 한다)는 2006. 5. 18. 토목건축공사업 등록을, 2008. 5. 30. 조경공사업 등록을 각 하여 건설업을 영위하고 있는 법인이다.

B. On January 9, 2013, the Daegu District Court 2012 Gohap74 decided to commence rehabilitation procedures. On March 4, 2013, the Construction Mutual Aid Association offsets the amount of 244 shares out of 600 shares of investment certificates of the Construction General Date, the amount of refund on October 25, 2013, and the amount of refund on 356 shares of the remaining investment certificates against the claims on loans for the Construction General Date.

C. After that, on October 28, 2013, the comprehensive construction plan was authorized by the rehabilitation court for corporate sale, and on November 13, 2013, the construction company filed an application for acquisition of investment certificate 356 units (25 units of civil construction business, 131 units of landscaping business) necessary for the registration standards for construction business with the construction mutual aid association on November 13, 2013, and deposited the price of KRW 492,269,680.

라. 원고(본래 상호가 ‘영성개발 주식회사’이었으나 2014. 3. 25. 현재 상호로 변경등기를 마쳤다)는 2014. 2. 18. 천일종합건설과 사이에 천일종합건설의 토목건축공사업과 조경공사업을 분할하여 합병하기로 분할합병계약을 체결하였고, 2014. 3. 25. 분할합병 등기를 마쳤다.

E. The Plaintiff succeeded to the right of 356 shares of the investment certificates to the Construction Mutual Aid Association of the Incheon Daily Construction. As the Construction Mutual Aid Association did not comply with the Plaintiff’s transfer of the holders of the investment certificates and the Plaintiff’s future guarantee amount on the grounds of damages incurred from the comprehensive construction of the Incheon Daily Construction, the Plaintiff filed a lawsuit claiming the return of the investment certificates with the Daegu District Court 2015Kahap207338 on November 25, 2015, and the said lawsuit was withdrawn on May 27, 2016, when the agreement was concluded on May 27, 2016, at the same time with the payment of the refund amount of the investment certificates from the Construction Mutual Aid Association on June 3, 2016.

F. The written agreement between the Plaintiff and the Construction Mutual Aid Association on May 27, 2016 states that when the Construction Mutual Aid Association acquires the Plaintiff’s investment shares under the name of the Construction Mutual Aid Association in order to pay the refund amount of investment certificates, the confirmation amount of the possible guarantee amount in the name of the comprehensive construction under the name of the Construction Mutual Aid Association immediately issued shall be invalidated.

사. 한편 원고는 2016. 6. 1. 전문건설공제조합에 출자를 하여 토공사업에 대한 보증가능금액확인서를 우선 발급받았고, 그 후 전문건설공제조합에 추가로 출자하여 2016. 6. 14. 토목건축공사업에 대하여 12억원, 조경공사업에 대하여 7억원의 각 보증가능금액확인서를 발급받았다.

아. 피고는 원고가 2016. 6. 3.부터 2016. 6. 13.까지 기간 동안 건설산업기본법 제10조 , 같은 법 시행령 제13조 제1항 제1의2호 에서 정한 보증가능금액확인서가 제출되지 않아 토목건축공사업과 조경공사업에 대한 건설업 등록기준에 미달하였다는 이유로, 2017. 3. 6. 원고에 대하여 건설산업기본법 제83조 제3호 에 따라 영업정지 4개월의 처분(이하 ‘이 사건 처분’이라 한다)을 하였다.

[Ground of recognition] The absence of dispute, Gap evidence Nos. 1, 3 through 15, 17, Eul evidence Nos. 1 (including a branch number), each fact inquiry results against the Construction Mutual Aid Association and Specialized Construction Mutual Aid Association, and the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Non-existence of grounds for disposition

According to the proviso of the part concerning the issuance and termination of the detailed criteria for the confirmation of the confirmation amount of the specialized construction mutual aid association’s confirmation, the term “if a person falls short of the standards for the issuance of a confirmation document due to a decrease in deposit or credit rating, decline in credit rating, seizure execution, etc., he/she shall give a deadline of 20 days from the date of occurrence of the cause and notify him

On May 27, 2016, the Plaintiff received a refund of investment certificates on June 3, 2016 from the Construction Mutual Aid Association and withdrawn from the Construction Mutual Aid Association on June 3, 2016, and then joined the Specialized Construction Mutual Aid Association within 20 days and issued a confirmation letter of possible amount of guarantee set forth in the standards for registration of construction business. Therefore, there is no reason for disposition.

In addition, in the agreement between the Plaintiff and the Construction Mutual Aid Association on May 27, 2016, when the Construction Mutual Aid Association refunds the contribution certificates, the construction Mutual Aid Association shall be deemed to have expired the confirmation amount of the possible guarantee amount, which is issued to the Construction Mutual Aid Association on a astronomical General Construction. However, this is in violation of the above provisions and shall not be effective and shall remain effective during the grace

(ii) the deviation and abuse of discretionary authority;

원고는 건설공제조합에서 탈퇴한 후 토공사업 신규 등록을 하여 전문건설공제조합의 회원 자격을 취득한 후 토목건축공사업, 조경공사업의 보증가능금액확인서를 발급받기까지 신용평가 등으로 10일이 소요된 것이고, 이는 비교적 단기간인 점, 원고가 건설공제조합으로부터 보증가능금액확인서를 발급받지 못하여 부득이 전문건설공제조합에 회원 가입을 위하여 토공사업 면허를 취득하고 토목건축공사업, 조경공사업 면허를 추가로 등록하는 과정에서 일시적으로 등록기준 미달이 발생한 점, 원고는 건설공제조합을 탈퇴하면서 수령한 출자증권 환급가액을 보유하고 있었으므로 이를 자본금으로 본다면 적정한 시공을 담보할 수 있었을 것으로 보이는 점, 위 10일의 기간 동안 원고가 공사를 수주하여 시공한 적이 없는 점 등에 비추어 보면, 영업정지 4개월의 이 사건 처분은 처분을 통해 달성하고자 하는 공익보다 원고가 입게 될 불이익이 현저히 크다고 할 것이므로, 이 사건 처분은 재량권을 일탈·남용한 것으로서 위법하다.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

1) Determination as to the non-existence of grounds for disposition

A) According to Article 6 subparag. 5 of the “Standards for Issuance and Termination of the Written Confirmation of possible amount of confirmation” (Article 2015-610, hereinafter “instant Notice”), which is the Ministry of Land, Infrastructure and Transport notification, the issuing authority shall immediately terminate the written confirmation in cases where the financial status of the person to whom the written confirmation is issued is changed, or the value of cash or security deposited due to the reasons, such as the exercise of security rights by the issuing authority, falls short of the standard, but may suspend the termination for a certain period of time in accordance with the internal regulations

In addition, according to the proviso of the part concerning the issuance and termination of the detailed standards for the confirmation of the confirmation of the possible amount of the deposit by the specialized construction mutual aid association, when it falls short of the standards for the issuance of the confirmation due to a decrease in the credit rating, decline in credit rating, seizure execution, etc., the confirmation shall be given within a period of 20 days from the date of occurrence of the cause,

B) However, Article 6 subparag. 5 of the Notice of this case sets the grounds for termination and postponement of issuing agencies for a person who has already received a written confirmation, and in this case, the Plaintiff received a refund of investment certificates from the Construction Mutual Aid Association on June 3, 2016, and then withdrawn from the Construction Mutual Aid Association, and then newly issued the confirmation amount of confirmation of the possible amount by making investments to the Construction Mutual Aid Association on June 14, 2016.

Therefore, in this case, the grounds for termination and postponement stipulated in Article 6 subparagraph 5 of the Notice of this case are not applicable, and if the plaintiff withdraws from the Construction Mutual Aid Association after receiving the certificate from the Construction Mutual Aid Association, it is natural to immediately lose the validity of the confirmation amount of possible guarantee amount. Thus, the first plaintiff's assertion on different premise is without merit.

2) Determination on the assertion of deviation or abuse of discretionary power

A) Article 83 of the former Framework Act on the Construction Industry (amended by Act No. 14015, Feb. 3, 2016) provides that “When a constructor falls under any of the following subparagraphs, the constructor may cancel the registration of construction business or order the suspension of construction business for a fixed period not exceeding one year: Provided, That in cases falling under subparagraphs 1, 2, 2-2, 3-2, 3-2, 3-3, 4 through 8, 8-2, 12, or 13, the constructor shall cancel the registration of construction business.”

According to the above provisions, it is interpreted that Article 83 of the above Act grants discretion as to whether to impose a sanction or not to impose a certain kind of sanction to an administrative agency, except in the case of falling under the grounds for cancellation of registration, and it does not necessarily stipulate that one of the “cancellation of registration” or “business suspension for not more than one year” should be imposed.

Meanwhile, Article 80 of the former Enforcement Decree of the Framework Act on the Construction Industry (amended by Presidential Decree No. 27440, Aug. 4, 2016; hereinafter the same) provides that “the period of business suspension according to the type and degree of a violation under Article 84 of the Act shall be as specified in attached Table 6.” Article 80 of the former Enforcement Decree of the Framework Act on the Construction Industry provides that “The period of business suspension may be increased or mitigated by up to 1/2 of the period of business suspension by taking into account the motive, content and frequency of the violation, characteristics of construction related to the violation, bidding method, etc.” and Article 84 of the former Enforcement Decree of the Framework Act on the Construction Industry (amended by Presidential Decree No. 27440, Aug. 4, 2016; hereinafter the same) provides that “where the

The above provisions, while granting an administrative agency a option as to whether or not a sanction under the Framework Act on the Construction Industry, set the criteria for a sanction in consideration of the type and degree of offense for the control of discretionary power, and if an administrative agency decided to impose a sanction in accordance with its discretion, it shall be deemed the criteria for disposition to be followed in selecting the degree of sanction.

B) Based on the foregoing legal doctrine, comprehensively taking account of the following circumstances revealed in the instant case’s health class, the facts acknowledged earlier, and the purport of the entire evidence presented earlier, it cannot be deemed that the Defendant decided to impose a sanction against the suspension of business pursuant to Article 83 of the former Framework Act on the Construction Industry, and that the Defendant chosen four months of the suspension of business to the extent of such sanction is deviating from and abusing discretion.

(1) In light of the purpose of the Framework Act on the Construction Industry for promoting the proper execution of construction works and the sound development of the construction industry, there is a very large need for public interest to prevent acts falling short of the standards

② On May 27, 2016, the Plaintiff received a refund amount of the investment certificates from the Construction Mutual Aid Association on June 3, 2016, when the Plaintiff agreed with the Construction Mutual Aid Association, even though the Construction Mutual Aid Association confirmed that the validity of the confirmation amount of confirmation of confirmation of confirmation of confirmation of confirmation that the certificate was issued to the Construction Mutual Aid Association was invalidated.

③ In light of the above circumstances and the public interest to achieve the instant disposition, even if considering the disadvantage that the Plaintiff would suffer due to the instant disposition, the public interest to achieve the instant disposition is greater.

④ As to the instant violation, the Defendant shall take the disposition of business suspension for six months in accordance with the disposition standard under Article 80 [Attachment Table 6] of the former Enforcement Decree of the Framework Act on the Construction Industry, but after mitigation of the business suspension for four months in consideration of the Plaintiff’s grounds for assertion, it seems that the above disposition standard complies with the above disposition standard and that it actually took a minimum

C) Therefore, we cannot accept the Plaintiff’s assertion that the instant disposition was erroneous in deviation from and abuse of discretionary power.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges O Young-gu