Defendant 1 and 16 others

Defendants

United States Armed Forces (Court) (Court of First Instance), New York (Court of Second Instance)

Attorney Park Jong-tae et al.

Changwon District Court Decision 2012Gohap360 Decided August 23, 2012

All appeals by the Defendants are dismissed.

1. Summary of grounds for appeal;

A. Defendant 1, Defendant 2, Defendant 3, Defendant 4, Defendant 5, Defendant 6, Defendant 7, Defendant 8 limited partnership company, Defendant 11, and Defendant 12

(1) misunderstanding of facts

① Since each of the instant electrical construction was executed by the Defendant Company as an employee of Nonindicted Company 1 (the Nonindicted Party in the judgment of the Supreme Court), the Defendants did not allow Nonindicted Company 1 to do electrical construction by lending the name of the Defendant Company to Nonindicted Company 1, and even if Nonindicted Company 1 was not an employee of the Defendant Company, Nonindicted Company 1 was awarded a subcontract for electrical construction from the Defendant Company and did not borrow the name, the lower court found the Defendants guilty of each of the instant facts charged. The lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

2) Unreasonable sentencing

Even if the facts charged in the instant case are found guilty, each punishment sentenced by the lower court to the Defendants (two million won per fine) is too unreasonable.

B. Defendant 9 and Defendant 10 corporation

① The instant electrical construction was executed by the Defendant Company as an employee of Nonindicted Company 1, and it did not allow the Defendant to do electrical construction by lending the name of the Defendant Company to Nonindicted Party 1, and ② even if Nonindicted Party 1 is not an employee of the Defendant Company, Nonindicted Party 1 was awarded a subcontract for electrical construction from the Defendant Company, but did not borrow the name, the lower court found the Defendants guilty of the instant charges. The lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

C. Defendants 13, 14, 15, and 16

(1) misunderstanding of facts

① Defendant 14 Co., Ltd. (hereinafter “Defendant 14 Co., Ltd.”) and Defendant 16 Co., Ltd. (hereinafter “Defendant 16 Co., Ltd.”), as a joint supplier of the instant electrical construction, have not subcontracted the instant construction to Defendant 16 Co., Ltd. as a manager, and there was no fact that the “Defendant 14 Co., Ltd.” subcontracted the considerable share of the instant electrical construction to Defendant 16 Co., Ltd., and ② the instant electrical construction was executed by Defendant 16 Co., Ltd. as an employee of Nonindicted 1 and Defendant 17. The instant electrical construction was executed by the “Defendant 16 Co., Ltd.”, and was not executed by Defendant 15 Co. 1 and Defendant 17 by lending the name of “Defendant 16 Co., Ltd.” to Nonindicted 1 and Defendant 17, and thus, the lower court convicted each of the facts charged against the Defendants

2) Unreasonable sentencing

Even if all of the facts charged in the instant case are found guilty, each sentence (Defendant 13, Defendant 14: each fine of 2 million won for the Defendants, Defendant 15: fine of 3 million won for the Defendants, and Defendant 16: fine of 4 million won for the Defendants) that the lower court sentenced to the Defendants is too unreasonable.

D. Defendant 17

(1) misunderstanding of facts

Since Defendant 16’s employees performed the instant construction work, the Defendant did not engage in electrical construction business without registration or leased Defendant 16’s name from Defendant 15 to Defendant 16, the lower court found Defendant guilty of the facts charged of this case. In so doing, the lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

2) Legal principles

In light of the form stipulated under Article 42 of the Electrical Construction Business Act, although the violation of the Electrical Construction Business Act due to a unregistered construction business (Article 42 subparagraph 1 of the same Act) and the violation of the Electrical Construction Business Act due to the name lending (Article 42 subparagraph 3 of the same Act) are not compatible with the agreement of legal concurrence, the court below found the Defendant guilty of all the charges charged against the Defendant, and judged as a commercial concurrence. Thus, the court below erred by misapprehending the legal principles as to the number of crimes, which affected the conclusion of the judgment.

3) Unreasonable sentencing

Even if the facts charged in the instant case are found guilty, the punishment imposed by the lower court on the Defendant (hereinafter referred to as a fine of four million won) is too unreasonable.

2. Determination

A. Judgment on the defendants' assertion of mistake of facts

The defendants asserted the same purport as the grounds for appeal in the court below, and the court below rejected the defendants' assertion and its decision in detail under the title "the grounds for the crime of oil". In light of the evidence duly adopted and examined by the court below, the court below's decision on the facts and its subsequent decision are just and acceptable even if they were in the trial, and there is no error of law that affected the conclusion of the judgment by misunderstanding the facts, and therefore, the defendants' assertion of mistake of facts is without merit.

B. Judgment on the misapprehension of legal principles by Defendant 17

The violation of the Electrical Construction Business Act due to the name transfer and the violation of the Electrical Construction Business Act due to the name transfer and the contents of the act are different. Since there are differences in the nature, contents, and nature of the act, and legal interests and interests, it cannot be deemed that the compatibility is impossible as well as the separate crime. Therefore, the court below is justified to consider the two crimes of the defendant as a separate crime and to determine the guilty

Therefore, the defendant's assertion of the above legal principles is without merit.

C. Determination on the remaining Defendants except Defendant 9 and Defendant 10 Company on the assertion of unreasonable sentencing

Although each of the crimes of this case is low in accordance with the practice of the electrical construction industry and the registration license is revoked if the defendant company is punished by a fine due to a violation of the Electrical Construction Business Act, the electrical construction itself is highly dangerous construction, and in particular, in the case of the electrical construction related to the Korea Electric Power Corporation, it has a significant impact on the general public, such as electricity supply, if the construction is erroneous, and therefore, the Electrical Construction Business Act provides that only the registered person can engage in the electrical construction business, and it is prohibited from giving a subcontract or lending the title of the electrical construction. However, even though the Electrical Construction Business Act provides that the registered person shall be allowed to engage in the electrical construction business by lending the name of the registered constructor or subcontracting the contracted construction work, and the quality of each of the crimes of this case is not weak, the scale of each of the electrical construction works of this case executed without any registration is not small, and the remaining defendants except the defendant 17 do not acquire the amount of the construction cost due to the actual involvement in each of the electrical construction of this case, the circumstances and the attitude of the defendants' assertion that the defendants did not seem to be justified.

3. Conclusion

Therefore, the Defendants’ appeal is without merit, and all of them are dismissed, and it is so decided as per Disposition by the assent of all participating Justices (Provided, That it is clear that the application of the law in the judgment of the court below is made by mistake that the “Article 45” following the “Electric Construction Business Act” under the Article 9 of the Enforcement Decree of the Electrical Construction Business Act is added, and it is clear that the “3. 3. 3. 23. 26. 6. 6. 6. 6. 6. 6. 6. . . . .”

Judges higher than judges (Presiding Judge) and Kim Young-young