Sejong General Construction Co., Ltd. (Law Firm Inulul, Attorney Shin Jae-in, Counsel for the plaintiff-appellant)

Do Governor of Chungcheongnam-Nam

October 2, 2014

Daejeon District Court Decision 2013Guhap3186 Decided May 29, 2014

1. Revocation of a judgment of the first instance;

2. The Defendant’s business suspension disposition against the Plaintiff on October 29, 2013 shall be revoked for five months.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Details of the disposition;

가. 원고는 1996. 5. 22. 설립되어 토목건축공사업을 업종으로 하여 건설업등록을 한 법인이다.

B. On July 26, 2013, the Center of Construction Industry Information, a foundation, notified the Defendant that “the credit rating of the Plaintiff’s confirmation of confirmation of confirmation of confirmation of confirmation was invalidated on July 16, 2013 due to decline in the credit rating of the Plaintiff.”

C. On October 29, 2013, the Defendant issued a disposition of business suspension for five months (hereinafter “instant disposition”) to the Plaintiff pursuant to Article 83 Subparag. 3 and Article 84 of the Framework Act on the Construction Industry and Article 80(1) [Attachment 6] of the Enforcement Decree of the same Act on the grounds that the Plaintiff failed to meet the standards for registration of construction business under Article 10 of the Framework Act on the Construction Industry and Article 13(1)1-2 of the Enforcement Decree of the same Act.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1 to 3 (including paper numbers), the purport of the whole pleadings

2. The assertion and judgment

A. The plaintiff's assertion

The Plaintiff’s former representative director and Nonparty 1’s former representative director were invalidated of the Plaintiff’s confirmation amount of possible guarantee amount due to the Plaintiff’s business management, embezzlement, and breach of trust. However, in light of the motive, content, and frequency of the act of violation, such as the Plaintiff’s failure to receive sanctions under the Framework Act on the Construction Industry after the establishment of May 2, 1996, by the efforts of the current representative director appointed after the fact that the management normalization is made, and the Plaintiff did not have any record of being subject to sanctions under the Framework Act on the Construction Industry, the instant disposition

B. Relevant statutes

Attached Form 3 is as specified in the relevant Acts and subordinate statutes.

C. The judgment of this Court

1) Article 84 of the Framework Act on the Construction Industry provides that the standards for the suspension of business, the period of suspension of business, the amount of penalty surcharges, and other necessary matters shall be prescribed by Presidential Decree. Article 80(1) of the Enforcement Decree of the Framework Act on the Construction Industry so delegated provides that “The period of suspension of business or the amount of penalty surcharges depending on the type and degree of offenses under Article 84 of the Act shall be as specified in attached Table 6 (hereinafter referred to as “attached Table 6”), while Article 84(2) provides that “the Minister of Land, Infrastructure and Transport may increase or reduce it within the scope of 1/2 of the period of suspension of business or the amount of penalty surcharges pursuant to paragraph (1) in consideration of the motive, content and frequency of offenses, characteristics of construction related to offenses, bidding methods, etc.”

In such a case, where there exist extenuating circumstances for mitigation of the period of suspension of business, it cannot be readily concluded that the disposition agency’s disposition of suspension of business was unlawful when it did not reduce the period of suspension of business, without considering the relevant reasons. However, in a case where the disposition of suspension of business was conducted according to the period of suspension of business as stipulated in the attached Table 6 without reducing the period of suspension of business, it cannot be said that the disposition of suspension of business was an unlawful disposition that deviates from and abused discretion (see Supreme Court Decision 2012Du1860, Dec. 26, 2012, etc.).

2) In full view of the following circumstances, the instant disposition was made with the content that excessively infringes the Plaintiff’s interest without considering the grounds for considering the mitigation of the period of suspension of business, and it constitutes an unlawful act of deviating from and abusing discretionary power, without considering the following circumstances, which can be seen by adding up the facts of recognition under paragraph (1), subparagraph (3), and the purport of the entire argument.

First, the defendant asserts that the grounds for mitigation under Article 80(2) of the Enforcement Decree of the Framework Act on the Construction Industry are stipulated in Chapter 3 of Chapter 7 of the former Regulations on the Construction Industry, which is the Ministry of Land, Infrastructure and Transport established by the Ministry of Land, Infrastructure and Transport, but [Attachment 6] is included in [Attachment 6] Article 80(2) of the Enforcement Decree of the Framework Act on the Construction Industry as amended on December 2, 2012. Thus, the defendant asserts that the grounds for mitigation under Article 80(2) of the Enforcement Decree of the Framework Act on the Construction Industry

Before the Enforcement Decree of the Framework Act on the Construction Industry was amended by Presidential Decree No. 24204, Nov. 27, 2012; it was enforced on December 2, 2012, there is no provision on the grounds for mitigation in [Attachment Table 6]; and where the Construction Business Management Regulations (amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 64, Dec. 30, 2013) specify the grounds for mitigation in Article 80(2)(1) of the Enforcement Decree of the Framework Act on the Construction Industry in Chapter VII(amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 3(1) of the Enforcement Decree of the Framework Act on the Construction Industry - (a) the frequency of the disposition - (excluding corrective orders and the imposition of fines) in which there was no fact of being subject to sanctions within the last three years (excluding corrective orders and the imposition of fines); (b) the intent of the violation is to take into account the circumstances where the violation was completed - the violation in question - the other person (excluding parties, employees and workers)

Since then, through the amendment of November 27, 2012, Article 1.3(a) of the [Attachment 6] [Attachment 6] A] If the correction was completed after having committed an act of violation due to a mistake in statutory interpretation, etc., and there is a need to take into account the circumstances. (c) If there was no sanction (excluding corrective order and imposition of fines) within the last three years, the reason for mitigation was stipulated as the reason for mitigation. Since the above provision under Chapter 7 subparag. 3 of the Construction Business Management Regulations was deleted upon the amendment of December 30, 2013, the number of the reasons for mitigation and the part concerning the motive for the violation (excluding the part concerning the violation) among the reasons for mitigation under the Construction Business Management Regulations were stipulated in [Attachment 6]. The Defendant applied the [Attachment 6] provision that “if there was no fact that having received a sanction (excluding a corrective order and a disposition of fine for negligence) within the last three years, it was subject to the suspension of business for one month.”

Article 80(2) of the Enforcement Decree of the Framework Act on the Construction Industry provides that the period of suspension of business may be increased or mitigated pursuant to “paragraph (1)” and Article 80(1) provides that “the period of suspension of business according to the type and degree of a violation shall be as specified in attached Table 6,” it is reasonable to deem that the period of suspension of business pursuant to “attached Table 6” is in accordance with Article 80(1) and that this period of suspension of business may be reduced again pursuant to Article 80(2). This does not mean that the circumstances leading to the amendment of [Attachment Table 6] as mentioned above are sufficient in [Attachment Table 6], and the defendant does not appear to have taken into account the motive, content and frequency of the violation, characteristics of construction related to the violation, and bidding method. Meanwhile, the part of the grounds for mitigation of construction business management regulations in Chapter 7 subparag. 3(1) of the Construction Business Management Regulations was effective at the time of the instant disposition, but the defendant himself/herself asserted that the construction business management regulations were applied, and it may be applied.

Second, the reason why the confirmation of possible amount of confirmation by the Plaintiff is invalidated is that the Plaintiff has to pay more than 25 units in addition to 200 units of investment in the existing Construction Mutual Aid Association due to decline in credit rating, because the Plaintiff failed to pay it as financial resources. As such, the Plaintiff’s active violation is not committed. The reason why the Plaintiff’s credit rating decline is considered to be due to the Plaintiff’s insufficient management, and there are circumstances to consider the motive and contents of the violation.

Third, the case where there was no sanctions (excluding corrective orders and imposition of fines) within the last three years is the grounds for mitigation prescribed in attached Table 6, and the defendant applied them. However, except for the case of this case, the plaintiff asserted that there was no record of being punished for violation of the Framework Act on the Construction Industry for about about about 17 years since the establishment of May 22, 1996 and the disposition of this case, and that there was no special dispute against this, it can be viewed as the grounds for mitigation related to the frequency of

3) Therefore, the instant disposition should be revoked in an unlawful manner.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is unfair on the grounds of its conclusion, so the judgment of the court of first instance shall be revoked upon receiving the plaintiff's appeal and the disposition of this case shall be revoked as per Disposition.

[Attachment Form 5]

Judges Lee Jung-hun (Presiding Judge)

1) Pursuant to Article 91(1) of the Framework Act on the Construction Industry and Article 86(1)10 of the Enforcement Decree of the Framework Act on the Construction Industry, the Defendant’s authority was delegated.