Whether an act of having another person receive a contract for or execute the electrical construction by using his name or trade name constitutes an “rental of a license or license pocket book” under Article 31 subparag. 8 and Article 46 subparag. 4 of the Electrical Construction Business Act.

The term “loan” of a license or license pocketbook as prescribed in Article 31 subparag. 8 and Article 46 subparag. 4 of the Electrical Construction Business Act means lending a license or license pocketbook itself to another person or allowing another person to exercise it for purposes other than its original purpose, and it should not be deemed that it does not include an act of having another person receive or execute the electrical construction by using his name or trade name.

Electrical Construction Business Act No. 8 and Article 46 subparag. 4

Supreme Court Decision 85Nu341 delivered on October 22, 1985 (Gong1985,1572) 86Do2760 delivered on August 9, 198 (Gong1988,1215) 89Nu3458 delivered on July 24, 1990 (Gong190,1803)

Defendant

Prosecutor

Daegu District Court Decision 94No2345 delivered on February 9, 1995

The appeal is dismissed.

The grounds of appeal No. 1 are examined.

In regard to the facts charged in this case that the defendant, who is an electrical construction business operator, violated Article 46 subparagraph 4 of the Electrical Construction Business Act by lending his license for electrical construction business to the non-licensed Kim Tae, the first instance court found the defendant not guilty on the ground that the defendant's act of having another person execute electrical construction work by using his name does not constitute lending his license or license pocket book under Article 46 subparagraph 4 of the Electrical Construction Business Act and thus cannot be punished as a violation of the same Act, and the court below dismissed the prosecutor's appeal by citing the reasoning of the judgment of the first instance.

Article 31 subparag. 8 of the Electrical Construction Business Act provides that a construction business license or license pocket book may be revoked if it is lent to another person. Article 46 subparag. 4 of the same Act provides that a person who lends a license or license pocket book to another person or uses another person's license or license pocket book by lease of another person's license or license pocket book shall be subject to criminal punishment. The lending column of a license certificate or license pocket book refers to lending it to another person or allowing another person to exercise it for purposes other than its original purpose, and it shall not be deemed that it does not include an act of allowing another person to receive or execute electrical construction by using his/her name or trade name (see, e.g., Supreme Court Decisions 85Nu341, Oct. 22, 1985; 86Do2760, Aug. 9, 198; 89Nu3458, Jul. 24, 190).

The grounds of appeal No. 2 are examined.

Defendant who was prosecuted for an act of leasing a license or license pocketbook under Article 46 subparag. 4 of the Electrical Construction Business Act shall not be punished as an aiding and abetting offense against an unlicensed business act under Article 46 subparag. 1 of the same Act without changing the indictment. Examining the reasoning of the judgment below, the court below seems to have made a decision on the above point, so there is no error of law such as misunderstanding of legal principles, incomplete hearing, or omission of judgment, as discussed in the judgment below. There is no reason

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

Justices Jeong Jong-ho (Presiding Justice)