Whether a corrective order under Article 25 (1) of the former Fair Transactions in Subcontracting Act may be issued, where the result of the violation does not exist even though the violation was committed against Articles 13 and 16 of the same Act (negative)

Articles 13, 16, and 25(1) of the former Fair Transactions in Subcontracting Act (amended by Act No. 8539 of July 19, 2007)

Supreme Court Decision 2001Du3099 Decided November 26, 2002 (Gong2003Sang, 232) Supreme Court Decision 2009Du11843 Decided January 14, 2010 (Gong2010Sang, 339) Supreme Court Decision 2008Du20093 Decided November 11, 2010 (Gong2010Ha, 2269)

Plaintiff (Law Firm Chungcheong, Attorneys Shin Shin-soo et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Law Firm Sejong, Attorneys Seo Sang-de et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2007Nu31609 decided August 28, 2008

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

Article 25(1) of the former Fair Transactions in Subcontracting Act (amended by Act No. 8539, Jul. 19, 2007; hereinafter “subcontract”) provides that the Fair Trade Commission may recommend or order a principal contractor who violates Articles 13 and 16 of the Subcontract Act to pay subcontract consideration, to discontinue the act of violation, and to take other measures necessary for correcting the act of violation. Unlike the provisions of Articles 13 and 16 of the Subcontract Act, the Subcontract Act provides that a penalty surcharge shall be imposed (Article 25-3(1)), and criminal punishment shall be imposed against the non-performance of the corrective order on the ground of the violation (Article 30(2)2 of the Subcontract Act) (Article 30(2) of the same Act). In light of the strict interpretation of the regulations on sanctions against infringement of interest, if there is no result of the violation, it shall be deemed that the order of correction under Article 13 and Article 16 of the Subcontract Act should no longer be pronounced if there is a result of the violation.

In the same purport, the court below is just in holding that it was unlawful for the defendant to issue the corrective order of this case to the non-party corporation, the subcontractor of February 8, 2007, which paid KRW 800 million as compensation for losses related to the construction of this case, and the result of each of the offenses of this case did not exist any longer, and it did not err in the misapprehension of legal principles as to the requirements and contents of the corrective order of this case under Article 25 (1) of the Subcontract Act, as otherwise alleged in the ground of appeal.

2. As to the grounds of appeal Nos. 2 and 3

The lower court determined that there is insufficient evidence to acknowledge that the instant corrective order was necessary to prevent the recurrence of violations, even if it is possible to issue a corrective order with the same type of act in the near future, because the act identical to each of the instant offenses could be repeated in the near future at the time of the instant corrective order, even if there is no possibility that the same type of act may be repeated in the near future.

However, this part of the judgment of the court below is merely a family and additional judgment, so long as the judgment of the court below that the corrective order of this case is unlawful as seen earlier is just, the propriety of the aforementioned family and additional judgment cannot affect the conclusion of the judgment. In addition, in light of the records, the above judgment of the court below seems to be justifiable (any more than anything is the termination of June 22, 2007, prior to the issuance of the corrective order of this case, because the construction contract of each of the construction of this case was terminated on June 22, 2007, which is before the issuance of the corrective order of this case, there is no possibility of repeating the same type of violation), and there is no error in the misapprehension of legal principles as to the judgment criteria

3. Conclusion

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 Hong-hoon (Presiding Justice)