[1] Legislative intent of Article 95 subparag. 2 of the Framework Act on the Construction Industry and relationship with Article 315 of the Criminal Code

[2] The case holding that a person who is not a constructor does not become a criminal subject of a violation of Article 95 subparagraph 2 of the Framework Act on the Construction Industry where he/she makes a tender for construction works on behalf of a constructor

[1] Article 95 of the Framework Act on the Construction Industry, Article 315 of the Criminal Code / [2] Article 95 of the Framework Act on the Construction Industry, Article 315 of the Criminal Code

[1] Supreme Court Decision 2000Do4700 decided Feb. 9, 2001 (Gong2001Sang, 684) Supreme Court Decision 2001Do2423 decided Nov. 30, 2001 (Gong2002Sang, 240)

Defendant

Prosecutor

Gwangju District Court Decision 2006No1075 Decided February 7, 2007

The appeal is dismissed.

We examine the grounds of appeal.

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 for not more than five years or by a fine not exceeding 50 million won, and subparagraph 2 provides that "a person who submits an estimate of another constructor." In full view of the purpose of the Framework Act on the Construction Industry to promote the proper execution of construction works and the sound development of the construction industry and the legislative purport under which the above penal provision was established, it is also known in the legislative text of the same subparagraph or the provisions of subparagraphs 1 and 3 of the same Article, which are concurrently related to the same subparagraph, to punish the constructors who engage in an act detrimental to the fairness of bidding in bidding of construction works, and thus, Article 315 of the Criminal Act which provides for the obstruction of bidding (see Supreme Court Decision 201Do2423, Nov. 30, 201). Meanwhile, Article 2 subparagraph 5 of the Framework Act on the Construction Industry provides that "a constructor or a person engaged in construction business" means a person registered pursuant to another Act.

Upon examining the reasoning of the judgment below in light of the above legal principles, it is just to reverse the part of the judgment of the court of first instance which found the defendant guilty of this part of the charges in the judgment of the court of first instance on the ground that the defendant was a representative of the management research institute and was merely a bid for construction works on behalf of a constructor, and that the defendant cannot be deemed as a substantial operator of Geumsan Construction as a constructor or a substantial operator of Geumsan Construction. There is no violation of law by misunderstanding the legal principles as to the principal agent of the elements of a construction act under Article 95

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)