[1] Whether Article 5 (1) of the Addenda to the Framework Act on the Construction Industry (negative) is unconstitutional (negative)

[2] In a case where the law and the enforcement decree are combined with a single law, whether it is permissible to make a request for adjudication on the unconstitutionality of a subordinate law such as the enforcement decree delegated by a law, by citing the unconstitutionality of such subordinate law (negative)

[1] Article 50 (2) of the former Construction Business Act (amended by Act No. 5230 of Dec. 30, 1996) provides that where a constructor violates the provisions of Article 22 (2) through (4) of the same Act, the constructor may order the suspension of business for a specified period not exceeding one year, or impose a penalty not exceeding the amount equivalent to 50/100 of the contract amount of the violated construction work, and the amount of the penalty surcharge according to the category and degree of the violation and other necessary matters shall be prescribed by the Presidential Decree. The former Framework Act on the Construction Industry (amended by Act No. 5965 of Apr. 15, 1999) provides that the constructor shall be subject to the suspension of business for a specified period not exceeding 15/100 of the contract amount, and Article 82 (2) of the former Framework Act on the Construction Industry (amended by Act No. 6112 of Jan. 12, 200) provides that the constructor shall be subject to the suspension of business for a specified period not exceeding 10/1/100 of the contract amount.

[2] As long as the right to review the unconstitutionality of an order, rule, or disposition, and the right to review the unconstitutionality of an order, rule, or disposition, is granted to a court at each level of final trial of the Supreme Court, the right to interpret and apply the relevant law or provision in a specific case is exclusively exclusively belonging to a court that has the Supreme Court, and thus, the court should determine the unconstitutionality of the relevant enforcement decree, rule, or disposition, which is the premise of a judgment by itself, since the right to interpret and apply the relevant law or provision entirely belongs to the court that has the Supreme Court. In the event that the law and the enforcement decree have a legal effect as a whole, it is not allowed to propose a judgment on the unconstitutionality of a subordinate law, such as the enforcement decree

[1] Article 2 (2) (see current Article 29 (2)), Article 2 (3) (see current Article 29 (3)), Article 29 (4) (see current Article 29 (4) of the Framework Act on the Construction Industry), Article 50 (2) (see current Article 82 (2) of the Framework Act on the Construction Industry) of the former Construction Industry Act (amended by Act No. 5230 of Dec. 30, 196), Article 29 (1) and (2) of the former Framework Act on the Construction Industry (amended by Act No. 5965 of Apr. 15, 199; Article 29 (1) and (2) of the Framework Act on the Construction Industry (amended by Act No. 6112 of Jan. 12, 200); Article 8 (1) and (3) of the former Enforcement Decree of the Framework Act on the Construction Industry (amended by Presidential Decree No. 1971 of Apr. 15, 1999)

[2] Supreme Court Decision 95Nu11405 delivered on April 9, 1996 (Gong1996Sang, 1442)

Dadong Construction Co., Ltd. (Attorney Choi Han-chul, Counsel for the plaintiff-appellant)

The motion to propose the unconstitutionality of this case is dismissed.

This Court's decision that the Constitutional Court shall make a request for an adjudication on whether Article 5 (1) of the Addenda to the Framework Act on the Construction Industry ( April 15, 1999) is in violation of the provisions of Article 13 (1) and (2) of the Constitution, which is the premise for the revocation of the disposition of imposing the penalty surcharge on the court.

1. Case summary

(4) The applicant shall subcontract 101,258,00 won per 7.6.6.6.10, 195 to 3.6.6.6.6.6.6.6.6.6.6.6.6.6.6.6.6.6.6.4.6.6.6.6.6.4.6.6.6.4.6.6.6.4.6.6.6.6.6.4.6.6.6.6.4.6.6.6.6.6.4.6.6.6.17.6.6.4.6.6.6.17.6.6.17.6.3.6.6.4.17.6.6.197.6.3.6.1977.3.6.3.66.3.66.77.3.38.38.195

On December 22, 1999, the Jeonnam Do governor imposed a penalty surcharge of KRW 147,624,00 on the ground that the applicant's subcontracting violated the restriction on subcontracting under Article 29 of the Framework Act on the Construction Industry and Article 82 (2) 2 and Article 84 of the same Act, and Article 80 (1) [Attachment Table 6] (b) of the Enforcement Decree of the same Act. The applicant filed a lawsuit seeking revocation of the said imposition of the penalty surcharge.

2. Applicant's assertion

Article 49 [Attachment Table 6] (B)(3) of the former Enforcement Decree of the Construction Industry Act provides that the rate of penalty surcharges for partial subcontracting violations shall be 12%, 9% to 50 million won, 60 million won, and 3% to 50,000 won, which shall be 24% from [Attachment Table 6] Item (b) to 2 of Article 80 of the Enforcement Decree of the Framework Act on the Construction Industry, which shall be 18%, 50 million won, and 12% until 10,000 won, and 3 billion won, which shall be 9.1.5% of the Enforcement Decree of the Framework Act on the Construction Industry (amended by Act No. 1594, Apr. 11, 195 to 17, 199; Act No. 15194, Sep. 19, 199; Act No. 15194, Feb. 3, 1996>

3. Relevant statutes;

* The former Construction Business Act

(2) If a constructor violates the restriction on subcontract as prescribed in Article 22 (2) through (4) of the Act, the Minister of Construction and Transportation may order him to suspend his business for a fixed period not exceeding one year, or impose a penalty surcharge not exceeding the amount equivalent to 50/100 of the contract amount of the violated work.

Article 51 (Disposition of Penalty Surcharge) (1) Amount of a penalty surcharge according to the category and degree of a violation on which a penalty surcharge is imposed under Article 50 (1) and (2), and other necessary matters shall be determined by the Presidential Decree.

Article 52 (Cancellation, etc. of License of Construction Business) Where a constructor violates the restriction on subcontract as prescribed in Article 22 (1) of the Act, the Minister of Construction and Transportation may cancel the license of construction business or order the suspension of construction business with fixing a period not exceeding one year.

* Enforcement Decree of the former Construction Business Act

Article 49 (Standards, etc. for Suspension of Business or Imposition of Penalty Surcharge) (1) The category of offenses subject to the order of business suspension or the period of business suspension or the amount of penalty surcharge shall be as shown in the attached Table 6.

[Attachment Table 6] Criteria for Suspension of Business and Imposition of Penalty Surcharges (Related to Article 49)

(b) The period of business suspension by violation or the amount of penalty surcharge pursuant to the provisions of Article 50 (2) of the Act (3. Where part of the contracted construction works is subcontracted to a person who has not obtained a construction business license for the relevant type of business: 12% of the amount of penalty surcharge up to 50 million won, 9% of the amount of penalty surcharge up to 50 million won, 6% of the amount of penalty surcharge up to 50 million won, 3 billion won and 3% of the amount of penalty surcharge);

* Former Framework Act on the Construction Industry (amended by Act No. 6112 of January 12, 2000)

(2) Where any constructor violates the restriction on subcontract under Article 29 (1) through (4), the Minister of Construction and Transportation or the Mayor/Do governor may order him to suspend the business for a fixed period not exceeding one year, or impose a penalty surcharge not exceeding the amount equivalent to 30/100 of the contract amount of the violated work in lieu of the suspension of business.

Article 84 (Detailed Criteria for Disposition of Suspension of Business, etc.) Where a disposition of suspension of business is taken or a penalty surcharge is imposed pursuant to Article 82, or where a disposition of suspension of business is taken pursuant to Article 83, the period of suspension of business, the amount of penalty surcharge and other necessary matters shall be determined by the Presidential Decree.

* The former Enforcement Decree of the Framework Act on the Construction Industry (amended by Presidential Decree No. 16790 of April 18, 200)

Article 80 (Standards, etc. for Suspension of Business or Imposition of Penalty Surcharge) (1) The period of business suspension or the amount of penalty surcharge according to the category and degree of offenses under Article 84 of the Act shall be as shown in attached Table 6.

[Attachment Table 6] Criteria for Suspension of Business and Imposition of Penalty Surcharges (Related to Article 80(1))

(b) When the period of business suspension by offense or the amount of penalty surcharge by offense under Article 82 (2) 1 through 4 of the Act (a part of the contracted construction works under Article 82 (2) 2 of the Act is subcontracted to a person who has not obtained a construction business license for the relevant business: 24% for the period of business suspension: 50 million won, 18% for the period of business suspension: 12% for 50 million won, 12% for 50 million won, and 6% for 3 billion won or more);

4. Determination

A.First, with respect to Article 22(2) of the former Construction Industry Act that provides for the criteria for imposition of penalty surcharges on some subcontractings in this case, where a constructor violates the provisions of Article 22(2) through (4) of the former Construction Industry Act, the constructor may order the suspension of business for a specified period not exceeding one year or may impose a penalty not exceeding an amount equivalent to 50/100 of the contract amount of the violated construction work. The former Framework Act on the Construction Industry (amended by Act No. 6112 of Jan. 12, 2000) provides that the amount of penalty surcharges according to the category and degree of the offense subject to the above provision and the other necessary matters shall be prescribed by the Presidential Decree, and Article 82(2) of the former Framework Act on the Construction Industry (amended by Act No. 6112 of Jan. 12, 200) provides that the constructor shall, in principle, order the suspension of business for a specified period not exceeding one year, or shall be subject to the subsequent revision of the Framework Act on the Construction Industry within 90 percent of the contract amount.

B. Next, Article 49(1) of the former Enforcement Decree of the Construction Business Act (amended by Presidential Decree No. 16790 of Apr. 18, 200) provides that if part of a contracted construction work under the delegation by Article 51(1) of the former Enforcement Decree of the Construction Business Act is subcontracted to a person who has not obtained a construction business license for the pertinent category of business, the rate of penalty surcharge shall be 12% up to 50 million won, 9% up to 50 million won, 6% up to 3 billion won, and 3% above the above Enforcement Decree of the Construction Industry Act (amended by Presidential Decree No. 16790 of Apr. 18, 200) shall be unconstitutional and shall not be subject to the Supreme Court's final decision on the unconstitutionality of the Act and its subordinate provision 9.1 of the former Enforcement Decree of the Construction Business Act (amended by Presidential Decree No. 16790 of Apr. 19, 200).

5. Conclusion

Therefore, the applicant's motion for proposal of the unconstitutionality of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Park Jae-chul (Presiding Judge)