The meaning of "tender" under Article 95 (3) of the Framework Act on the Construction Industry (=the same as bidding in relation to interference with bidding under the Criminal Act)

Article 95 of the Framework Act on the Construction Industry provides that a person who commits an act falling under any of the following subparagraphs in a tender for construction works shall be punished by imprisonment for not more than five years or by a fine not exceeding 50 million won, and subparagraph 3 of Article 95 provides that "a person who obstructs another constructor's bidding by deceptive scheme, force or any other means." In full view of the purpose of the Framework Act on the Construction Industry to promote the proper execution of construction works and the sound development of the construction industry and the legislative purport of the above penal provision, the above penal provision is established. In addition to the reasons mentioned in subparagraphs 1 and 2 of Article 95 of the same Act, it is to specially aggravated punishment for constructors who engage in an act detrimental to the fairness of bidding in a tender for construction works, and thus, it is the same as the crime of interference with bidding under Article 315 of the Criminal Act, and therefore, the concept of "tender act" under Article 95 subparagraph 3 of the Framework Act on the Construction Industry is the same as the crime of interference with bidding under the Criminal Act.

Article 315 of the Criminal Act, Article 95 subparag. 3 of the Framework Act on the Construction Industry

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Defendant 1 and five others

Defendants

Law Firm Hung, Attorneys Yang Jong-soo et al.

Seoul High Court Decision 2001No168 delivered on April 24, 2001

All appeals are dismissed.

1. As to Defendant 2’s assertion of mistake of facts

According to the evidence duly admitted by the court below, the co-defendants of the court below can obtain the power of attorney on the tender from Defendant 2 Co., Ltd. and sufficiently recognize the participation in the tender of this case as his representative, and there is no error of law by mistake of facts against the rules of evidence as asserted

2. As to the Defendants’ assertion of misapprehension of legal principles as to Article 95 subparag. 3 of the Framework Act on the Construction Industry

Article 95 of the Framework Act on the Construction Industry provides that a person who commits an act falling under any of the following subparagraphs in bidding of construction works shall be punished by imprisonment for not more than five years or by a fine not exceeding 50 million won, and subparagraph 3 of Article 95 provides that "a person who obstructs another constructor's bidding by deceptive scheme, force, or any other means." In full view of the purpose of the Framework Act on the Construction Industry to promote the proper execution of construction works and the sound development of the construction industry and the legislative purport of imposing the above penal provision, it is intended to specially aggravated punishment for constructors who engage in an act detrimental to the fairness of bidding in bidding of construction works except for the reasons mentioned in subparagraphs 1 and 2 of Article 95 of the same Act, and thus, the special provision on the obstruction of bidding under Article 315 of the Criminal Act is a violation of the Criminal Act (see Supreme Court Decision 200Do4700, Feb. 9, 201).

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to Article 95 subparagraph 3 of the Framework Act on the Construction Industry as alleged in the grounds of appeal

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)