In a case where a national technical qualification holder lends his/her national technical qualification certificate to another person and conducts a business with permission, authorization, registration, license, etc. or conducts a business on the premise that a technical qualification holder is appointed, appointed, or employed by a person with a national technical qualification by pretending to perform his/her duties based on the national technical qualification by means of improper means, whether the person constitutes “loan or borrowing of the national technical qualification certificate” prohibited under Articles 26(3)1 and 15(2) of the National Technical Qualifications Act (affirmative)

The National Technical Qualifications Act aims to develop the vocational ability of technical manpower by efficiently operating the national technical qualification system and to contribute to the improvement of the social status of technical manpower and the national economic development. To achieve its purpose, the State’s duty is to effectively reflect the job performance abilities, etc. required in the industrial field in order to achieve the objective in the national technical qualification system and to establish policies necessary for linking the national technical qualification system with employment, etc. In the event the State and local governments grant permission, authorization, registration, license, or other benefits concerning the job performance field of the national technical qualification, the State and local governments shall give preferential treatment to the person holding the national technical qualification in the job field, while Article 15(2) shall not lend or lend the national technical qualification certificate to any other person or

In light of the legislative purpose, contents, and purport of the National Technical Qualifications Act, in a case where an individual statute regulating the business of the field of national technical qualification provides that technical personnel who have acquired national technical qualification must be equipped with such technical personnel as an essential standard for business permission, authorization, registration, or license, or where an entrepreneur, etc. provides that technical personnel who have acquired national technical qualification must be appointed, appointed, or employed under the essential premise for business to maintain and maintain industrial safety, operate facilities, prevent accidents, etc., by lending a national technical qualification certificate to another person without performing his/her duties under the national technical qualification, if the national technical qualification holder was to conduct a business with permission, authorization, registration, or license by pretending that the national technical qualification holder actually performs his/her duties under the national technical qualification in relation to his/her business or business, or to conduct a business on the premise that the national technical qualification holder is appointed, appointed, or employed, by means of improper means, under Article 26(3)1 and Article 15(2) of the National Technical Qualifications Act, it constitutes an act of lending, or borrowing a national technical qualification certificate prohibited under Article 15(2).

Article 1, 3(1), 14(1), 15(2), and 26(3)1 of the National Technical Qualifications Act

Defendant

Prosecutor

Daegu High Court Decision 2014No231 decided September 18, 2014

The non-guilty part of the judgment below shall be reversed, and that part of the case shall be remanded to the Daegu High Court.

The grounds of appeal are examined.

1. The National Technical Qualifications Act aims to develop the vocational ability of technical human resources by efficiently operating the national technical qualification system and to contribute to the improvement of the social status of technical human resources and national economic development. To achieve this objective, the State’s duty is to effectively reflect the job performance abilities, etc. required in the industrial field in order to link the national technical qualification system with employment, etc., and the State and local governments stipulate that the State and local governments shall give preferential treatment to the holders of the national technical qualification in the field of a job, while Article 15(2) provides that the State and local governments shall not lend or lend the national technical qualification certificate to other persons or arrange the loan.

In light of the legislative purpose, contents, and purport of the National Technical Qualifications Act, in a case where an individual statute regulating the business of the field of national technical qualification provides that certain technical personnel who have acquired the relevant national technical qualification must be equipped with the necessary standards for permission, authorization, registration, or license of such business, or where an enterprise, etc. provides that technical personnel who have acquired the relevant national technical qualification must be appointed, appointed, or employed under the essential premise for the business to maintain and maintain industrial safety, operate facilities, prevent accidents, etc., the national technical qualification holder shall lend his/her national technical qualification certificate to another person without performing his/her duties under the relevant national technical qualification and make it possible that the national technical qualification holder actually appointed, appointed, or employed the pertinent business or the pertinent business by pretending that the national technical qualification holder actually performs his/her duties under the relevant national technical qualification, if he/she did so by obtaining permission, authorization, registration, or license, or on the premise that a technical personnel equipped with the relevant national technical qualification is appointed, appointed, or employed, such act constitutes an act of lending the national technical qualification certificate prohibited under Articles 26(3)1 and 15(2).

2. (1) The first instance court determined that (A) if an unqualified person does not perform his national technical qualification as a national technical qualification qualification, it cannot be deemed an act of lending a national technical qualification certificate prohibited by the National Technical Qualifications Act, and (b) in order to operate the instant hospital, he must employ a gas technician in the building located in the hospital. The Defendant, who led to the establishment of the instant hospital, introduced Nonindicted 2 via Nonindicted 1 to Nonindicted 3, the building owner, via Nonindicted 1; (c) Nonindicted 3, from August 2011 to March 3, 2011, paid KRW 60,000 to Nonindicted 2 via Nonindicted 1, but further, it is determined that there is no evidence to prove that the Defendant or Nonindicted 3 actually performed his duties as a gas technician without involving Nonindicted 2’s involvement, and that the charge of violating the National Technical Qualifications Act against the Defendant constitutes a violation of the National Technical Qualifications Act (c) the lower court maintained the judgment on the grounds stated in its reasoning.

3. However, we cannot accept the judgment of the court below for the following reasons.

A. The Urban Gas Business Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter the same) was enacted for the purpose of protecting users’ interests by rationally adjusting and fostering urban gas business and promoting the sound development of urban gas business, and securing public safety by prescribing matters on the installation, maintenance, and safety control of gas supply facilities and gas-using facilities. Article 29 of the same Act provides that the user of a specific gas-using facility shall appoint a safety manager before using the facility to perform duties on the safety maintenance and operation of specific gas-using facilities (Paragraph 1); the person who has appointed a safety manager shall report a safety manager to the competent administrative agency without delay if he/she appoints or dismisses a safety manager or retires from his/her office (Paragraph 2); the type, qualification, number, scope of duties of a safety manager; and other necessary matters (Paragraph 7).

In addition, Article 15(3) [Attachment 1] of the Enforcement Decree of the Urban Gas Business Act (amended by Presidential Decree No. 24442, Mar. 23, 2013; hereinafter the same) upon delegation of the above provision provides that one safety manager in charge of safety management and one person in charge of safety management (limited to cases where the monthly expected amount of use exceeds 4,000 cubic meters) shall be appointed by the user of a specific gas user facility, and that the person in charge of safety management shall be qualified as “a person with at least a gas engineer qualification or a person who has completed education for training of facility safety managers conducted by the Korea Gas Safety Corporation after obtaining approval from the Minister of Knowledge Economy.”

B. According to the evidence duly admitted, Nonindicted 1 stated to the prosecutorial investigator the reason why Nonindicted 2 lent Nonindicted 2’s national technical qualification certificate by telephone, and the safety manager should be appointed in cases where the monthly planned use of urban gas exceeds 4,000 cubic meters. As the safety manager in the instant building occupied by the instant hospital was unable to supply urban gas, and upon the Defendant’s request, Nonindicted 2 lent Nonindicted 2’s gas technician qualification certificate to Nonindicted 3, the owner of the instant building. The Defendant also stated to the same effect as the same effect.

C. Examining the above statements and the reasoning of the lower judgment in light of the above relevant laws and regulations, the building occupied by the instant hospital is a specific gas user facility exceeding 4,000 cubic meters of the monthly expected use volume as stipulated in Article 15(3) [Attachment 1] of the Enforcement Decree of the Urban Gas Business Act, and it appears that the appointment and report of a safety manager with qualifications more than a gas technician is an essential gas user facility to perform duties concerning the safety maintenance and operation of gas using facilities, which is the legislative

D. In full view of the above circumstances in light of the legal principles as seen earlier, if Nonindicted 2 borrowed his gas technician license to the owner, etc. of the instant building without performing his duties as a safety manager in the instant building, (2) it is deemed that the user of the instant building, which constitutes specific gas user facilities, was appointed by Nonindicted 2 as a safety manager, and reported as if Nonindicted 2 was engaged in safety maintenance and operation duties, thereby using urban gas to a specific gas user facility on the premise that a safety manager qualified as a gas technician is appointed, and thus, the act of lending and borrowing the said license constitutes an act of lending and borrowing national technical qualification certificates prohibited under the National Technical Qualifications Act. (3) Even if Nonindicted 2 borrowed the said license from Nonindicted 2, as recognized in the first instance trial, and then the Defendant or Nonindicted 3 did not directly perform duties as a gas technician, it does not change even if he did not directly perform duties as a gas technician.

4. Nevertheless, the lower court determined otherwise, on the sole ground that it is difficult to view that Nonindicted 2 or Nonindicted 3 actually performed his duties as a gas technician on the erroneous premise contrary to the legal doctrine as seen earlier, the lower court did not constitute an act of borrowing national technical qualification certificates solely on the grounds that it is difficult to view that Nonindicted 2 or Nonindicted 3 actually performed his duties as a gas technician on the following grounds: (a) the specific circumstance in which Nonindicted 2 lent Nonindicted 1’s qualification certificate via Nonindicted 1; (b) whether Nonindicted 2 actually performed his duties as

Therefore, in so determining, the court below erred by misapprehending the legal principles on lending or borrowing a national technical qualification certificate prohibited by the National Technical Qualifications Act, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

5. Therefore, the non-guilty part of the judgment of the court below is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)