[1] In a case where the defendant admitted the authenticity and voluntariness of the interrogation protocol prepared by the prosecutor for himself, whether the admissibility of evidence is recognized (affirmative)

[2] The meaning of "person who has registered his/her office in a deceitful or other unlawful manner" under Article 39 subparagraph 4 of the former Certified Architects Act

[3] The meaning of "loan of a license" under Article 10 of the former Certified Architects Act

[4] Where an architect had an unqualified person obtain registration of an architect office under his/her name, but he/she directly performs his/her business after such registration, whether the license can be deemed as a "loan of a license" (negative)

[1] Even in cases where the defendant acknowledged the authenticity and voluntariness of the protocol of interrogation prepared by the prosecutor for himself/herself, and then submitted the protocol or documents, when the court acknowledged the voluntariness of the statement in light of various circumstances, such as the contents of the protocol, the reasons why the protocol was prepared, and the statement related to the crime in the court of the defendant, etc., when the first statement recognized the voluntariness of the statement was deemed credibility and the protocol of interrogation of the suspect concerned

[2] "A person who has obtained registration of a construction office under Article 23 by deceit or other fraudulent means under Article 39 subparagraph 4 of the former Certified Architects Act" refers to a person who has obtained such registration by a deceptive scheme or other acts which are considered to be unfair by social norms even though the registration of an architect office is not possible in accordance with normal procedures.

[3] In light of the legislative intent of the former Certified Architects Act, the purpose of which is to improve the quality of a building by prescribing strict requirements for the qualification of a certified architect, and the fact that a certified architect, other than a certified architect, is unable to engage in design or construction supervision of a building exceeding a certain size, and the contents of the former provisions related to the Certified Architects Act and a certificate proving that he/she is qualified as a certified architect together with a license pocket book, it is reasonable to interpret the term "loan of a license prohibited by the former Certified Architects Act" as lending of a license itself even though other person is aware that he/she intends to engage in design and construction supervision of a building by using his/her license.

[4] Even though a third party, an unqualified, was allowed to use his/her license for the registration of an architect office and reporting of the registration of the architect office under the name of the architect after investing funds, if the architect himself/herself continues to perform the business of designing and supervising the construction of the building in the architect office after the registration, and the unqualified person did not have performed the business of the architect, the license shall not be deemed to have been lent.

[1] Article 312 of the Criminal Procedure Act / [2] Article 39 subparagraph 4 of the former Certified Architects Act (amended by Act No. 4918 of Jan. 5, 1995) / [3] Article 10 of the former Certified Architects Act (amended by Act No. 4918 of Jan. 5, 1995) / [4] Article 10 of the former Certified Architects Act (amended by Act No. 4918 of Jan. 5, 1995)

[1] Supreme Court Decision 90Do2362 delivered on December 26, 1990 (Gong1991, 678), Supreme Court Decision 91Do346 delivered on June 22, 1993 (Gong1993Ha, 2183), Supreme Court Decision 94Do1318 delivered on August 9, 1994 (Gong1994Ha, 2317), Supreme Court Decision 95Do2930 delivered on March 8, 1996 (Gong196Sang, 1311), Supreme Court Decision 96Do88 delivered on August 23, 196 (Gong196Ha, 2935) / [3] Supreme Court Decision 7Nu29397 delivered on September 25, 1979 (Gong199Ha, 2935)

Defendant 1 and one other

Defendants

Attorney Jeong Tae-sung

Seoul District Court Decision 95No1127 delivered on December 6, 1996

The part of the judgment of the court below concerning the Defendants is reversed and that part of the case is remanded to the Seoul District Court Panel Division.

Defendant 1 and 2’s defense counsel’s grounds of appeal are also examined.

1. As to the assertion of admissibility of evidence

Co-defendant A and Eul suspect interrogation protocol prepared by the public prosecutor in the first instance, and in the case where Gap and Eul acknowledged their own discretion and discretion, even if they consented to the interrogation protocol prepared by each co-defendant, all of them can be used as evidence of guilt against each co-defendant (see Supreme Court Decision 90Do2362 delivered on December 26, 190). In case where the defendants acknowledged the authenticity and discretion of the establishment of prosecutor's interrogation protocol prepared by the public prosecutor as to each co-defendant Gap and the prosecutor's protocol prepared by the public prosecutor, and the court made a statement or submitted a document that denies discretion, in light of all the circumstances, such as the contents of the protocol prepared by the public prosecutor, the reasons why the protocol was prepared, the defendant's statement related to the crime in the court, and the first interrogation protocol prepared by the public prosecutor's first instance court, and it is still admissible and admissible (see Supreme Court Decision 95Do2930 delivered on March 8, 196).

In light of the records, the above defendants acknowledged the authenticity and voluntariness of the suspect interrogation protocol prepared by the prosecutor on the first trial date of the first trial of the court of first instance, and argued the voluntariness of their statements, but in the case of defendant 2, the suspect interrogation protocol prepared by the prosecutor himself to the prosecutor and the prosecutor's protocol prepared by the defendant 1 did not contain any reasonable and considerable facts to suspect the voluntariness especially in the case of defendant 1, and there is no evidence to see that the suspect interrogation protocol prepared by the prosecutor as to the defendant 2 prepared by the prosecutor without the prosecutor's attendance. Thus, it is just for the court below to adopt it as evidence by recognizing voluntariness of each suspect interrogation protocol prepared by the prosecutor and the protocol prepared by the judicial police officer on the Kim-un, and it cannot be said that there is no error in the adoption of evidence like the theory of lawsuit

2. As to the offering of a bribe to Defendant 1

According to the records, the court below's decision to the same purport is just, and there is no error in the misapprehension of the legal principles as to the offering of a bribe, as it does not exceed the extent of assistance that is paid as a formal reward in a leave, a holiday, or a holiday in a common-friendly relationship, and it does not exceed the extent of assistance that is paid as a formal reward in the ordinary-friendly relationship, and there is no error in the misapprehension of the legal principles as to the offering of a bribe, such as the theory of lawsuit. The argument is without merit.

3. As to the violation of the Certified Architects Act against the Defendants

According to the reasoning of the judgment of the court below, the court below held that Defendant 1 and 2 paid monthly money to Defendant 1 and agreed to establish and operate the building office of Defendant 1 with the same person's certificate of architect license, and that the act of the Defendants constitutes a joint principal offense under Article 4 of the former Certified Architects Act (amended by Act No. 4918, Jan. 5, 1995) on the ground that Defendant 1 borrowed the architect's license under the condition that Defendant 2 would pay 4,00,000 won each month from Defendant 2 who was an architect, and established and operated the new architect's license under the condition that he would pay 4,00,000 won each month from Defendant 2 who was the architect, but submitted the above application for the registration of the new architect's license to Defendant 2 along with the above new architect's certificate of architect's license, the above Defendant 2 was presumed to have been registered with the new architect's architect's office by fraud or other improper means.

On the other hand, "a person who has obtained the registration of a construction office under Article 23 by means of deception or other illegal means under Article 39 subparagraph 4 of the former Certified Architects Act" shall be deemed as having affected a person who has obtained the registration by means of deception or other fraudulent acts which are considered to be illegal by social norms, notwithstanding that the registration of an architect office cannot be obtained through normal procedures. In this regard, the purport of the court below is that Defendant 2, a certified architect, committed an offense falling under the above Article 39 (4) by making the registration of an architect office in collaboration with Defendant 1, a non-qualified architect, by taking into account the illegal means such as lending of an architect's license, which constitutes a violation of the prohibition of lending a license under Article 10 of the same Act.

However, in light of the legislative intent of the former Certified Architects Act aiming at improving the quality of a building by prescribing strict requirements for the qualification of a certified architect to achieve this purpose, and the contents of the former provisions related to the Certified Architects Act aiming at preventing a certified architect from engaging in design or construction supervision of a building exceeding a certain size, and the former provisions related to the Certified Architects aiming at ensuring that a license is qualified as a certified architect together with a license pocket, it is reasonable to interpret the former Certified Architects aiming at lending a license as being aware that another person knowingly intends to engage in design and construction supervision of a building by using his license as a certified architect (see Supreme Court Decisions 78Nu210, Sept. 25, 1979; 94Do1937, Dec. 23, 1994; hereinafter the same applies to the current Certified Architects Act sustaining the framework of the former Certified Architects Do).

Therefore, even if a third party, who is an unqualified architect, was allowed to use his/her license in the registration and reporting of an architect's name after investing funds, the architect cannot be deemed to have lent his/her license, unless he/she had continued to engage in the design and construction supervision, etc. of the building in the architect office after the registration, and the unqualified person had not provided the services of the architect.

In this regard, Defendant 2 argued to the effect that the design and construction supervision of a building performed within the scope of his own license while actually serving in the architectural firm registered in the name of this case was performed under his responsibility and Defendant 1 was registered as an assistant architect for a long time under Defendant 2, and the registration of the architectural office was completed in order to constitute an incorporated architect, and that the registration of the architectural office was not obtained by deceit or other unlawful means, first of all, in order to consider whether the real relation was registered under the license, Defendant 2, who was working in the architectural firm of this case while performing the design and construction supervision of the building of this case, which is the main business of the certified architect, had the certified architect perform the design and construction supervision of the building, which is the unique business of the certified architect, and Defendant 2 did not consider whether Defendant 1 had performed the design and construction supervision of the building, which is the unique business of the certified architect, and had Defendant 1 rent his license to the certified architect office under the name of the certified architect by deceit or other unlawful means, without examining whether Defendant 1 performed the construction business under his own own responsibility.

4. Therefore, among the judgment of the court below, it cannot be maintained that there is a violation of the Certified Architects Act against Defendant 1 and the commercial interests, and there is no ground for appeal as to the offering of the bribe to Defendant 1. However, since the court below sentenced Defendant 1 to a single punishment because the violation of the Certified Architects Act and the offering of the bribe to Defendant 1 are concurrent crimes under the former part of Article 37 of the Criminal Act, the conviction part of the offering of the offering of bribe cannot be reversed together with the violation part of the Certified Architects Act, and the part of the judgment of the court below as to the defendant 1 and the commercial interests shall be reversed and remanded

Justices Lee Yong-hun (Presiding Justice)