[1] Whether the part of "interested party" in Article 38-2 of the Framework Act on the Construction Industry prohibiting the receipt of money and valuables by illegal solicitation in relation to receiving orders and executing construction works violates the principle of clarity (negative)

[2] The purpose of Article 85 subparagraph 9 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents is to delete penal provisions regarding "act accepting advice" from a person who is not registered for the rearrangement project management business

[1] In light of the legislative purpose of Articles 38-2 and 95-2 of the Framework Act on the Construction Industry and Article 38-2 of the same Act that prohibit and punish the ordering person, contractor, subcontractor or interested person from receiving money and valuables by illegal solicitation, and the language, regulation system, etc., “interested person” under Article 38-2 of the same Act means a person who competes to enter into a contract for construction works for the purpose of receiving a contract or a subcontract and has a direct and legal interest in entering into a contract for construction works, and the “interested person” with such meaning shall not be deemed to violate the principle of clarity in the principle of no punishment without the law.

[2] Article 85 subparagraph 9 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009) was amended by Act No. 9444 of Feb. 6, 2009, which was following the decision of the court below, and Article 69 (1) of the former Act was deleted as to providing advice and suggestions to the promotion committee or the project implementer concerning the matters necessary for the implementation of the rearrangement project. However, in light of the above Act’s supplementary provisions as to the application of penal provisions to the advisory act by a person who has not registered the rearrangement project management business at the time of the amendment of the above Act, even if the person is not registered as the rearrangement project management business management business, it shall be deemed that the previous Act was amended in consideration of reflective results that the former measure was unfair.

[1] Articles 38-2 and 95-2 of the Framework Act on the Construction Industry / [2] Articles 69 (1) and 85 subparagraph 9 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009), Article 85 subparagraph 9 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9632 of Apr. 22, 2009)

[1] Supreme Court Decision 2008Do2590 Decided September 25, 2008 (Gong2008Ha, 1497)

Defendant 1 and four others

Defendants

Law Firm Woo et al.

Seoul High Court Decision 2006No2571 decided June 28, 2007

The judgment below is reversed and the case is remanded to Seoul High Court.

1. We examine the Defendants’ grounds of appeal.

A. As to the ground of appeal on the violation of the Framework Act on the Construction Industry by Defendants 1, 2, 4, and 5

(1) The principle of no punishment without the law guaranteed in Articles 12 and 13 of the Constitution refers to a crime and punishment must be determined by law. The principle of clarity derived from such principle of no punishment without the law refers to what is intended to punish a law and what is expected by anyone who can anticipate and how the punishment is imposed on him/her, and that clearly prescribes the elements of a punishment so that he/she can decide his/her act (see Supreme Court Decision 2006Do920, May 11, 2006). The legislative purpose of the punishment law, overall contents, structure, etc. are examined by the understanding and judgment of the general public who have the ability to distinguish things from others, and where it is possible to find a reasonable interpretation standard to standardized or limit acts or types of actors which constitute the elements of the punishment law, it does not contravene the principle of clarity (see Supreme Court en banc Decision 98Do3665, Nov. 16, 200, etc.).

Article 38-2 of the Framework Act on the Construction Industry (hereinafter “the Act”) provides that “any ordering person, contractor, subcontractor or interested person shall not acquire or grant any property or property gains by illegal solicitation in connection with the conclusion of a contract or the execution of a construction work.” Article 95-2 of the Act provides that “any person who acquires or gives any property or property gains by illegal solicitation in violation of Article 38-2 shall be punished by imprisonment for not more than five years or by a fine not exceeding 50 million won.” This provision prohibits an ordering person, contractor, subcontractor or interested person from receiving money by illegal solicitation in connection with orders and execution of a construction work and imposes criminal punishment to prevent problems such as defective construction by eradicating irregularities in the construction work and construction work and promoting the sound development of the construction industry. In addition to such legislative purpose, in full view of the language, regulation, system, etc. of Article 38-2 of the Act, “interested person” under Article 38-2 of the Act refers to a person who has a direct competition and interest in a contract for construction work and is not more than 908.

(2) The lower court acknowledged that Defendant 1, the executive director of Defendant 4 Co. 2, together with Defendant 2, delivered KRW 300 million in total to Defendant 5,00,000 to the promoters and residents in Zone Six of Madam 6 in relation to the selection of housing redevelopment project in Zone Six of Madam 6, and that Defendant 1 and Defendant 2 conspired with Defendant 2 to deliver KRW 1,650,000 to the representative of Nonindicted Co. 3 Co. 3, Ltd., and Nonindicted Co. 2, the rearrangement project chain, in violation of Article 38-2 of the Act, and that Defendant 4, the employees of Defendant 1 and Defendant 2, committed a violation of the Framework Act on the Construction Industry under Article 98(2) of the Act.

However, Article 38-2 of the Act merely prohibits an ordering person, contractor, subcontractor or interested person from receiving or receiving property or property benefits by illegal solicitation in connection with the order and execution of a project, and does not constitute an act of offering money or goods to a person not stipulated in Article 38-2 of the Act (see Supreme Court Decision 2008Do2590, supra), Defendant 1, Defendant 2, and Defendant 5 cannot be deemed to constitute an "interested person" as stipulated in the above Act.

Therefore, the judgment of the court below that recognized Defendant 1, Defendant 2, Defendant 5, Defendant 1, and Defendant 2’s employees against the Framework Act on the Construction Industry is erroneous in the misunderstanding of legal principles as to Article 38-2 of the Act, which affected the conclusion of the judgment.

B. As to Defendant 5’s ground of appeal on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

(1) The purport of Article 254(4) of the Criminal Procedure Act stipulating that “The facts charged shall be stated clearly by specifying the time, date, place, and method of a crime, shall be specified.” The purpose of the Criminal Procedure Act is to facilitate the efficiency and speed of trial by limiting the object of the trial and the scope of defense by specifying the scope of defense, and at the same time to facilitate the exercise of defense rights by the defendant. The specific facts charged are sufficient to specify the facts causing a public prosecution by pointing out the time, place, method, purpose, things, etc. to the extent that it can distinguish the facts causing a public prosecution from other facts charged, and even if some of them are clearly unclear, the effect of the public prosecution does not affect the conclusion of the public prosecution as long as it can be specified by other matters indicated together (see, e.g., Supreme Court Decisions 86Do2260, Jan. 20, 1987; 200Do2968, Oct. 26, 2001).

In the case of this part of the facts charged against Defendant 5, since the date and amount of each embezzlement, and the method of embezzlement are specified to the extent that there is no possibility of confusion with other crimes, the court below did not err in the misapprehension of legal principles as to the specification of the facts charged.

(2) The ground of appeal pointing out that part of the embezzlement amount acknowledged by the court below includes Defendant 5’s payment on behalf of the company is nothing more than an error of fact-finding, which is the fact-finding court, and thus does not constitute a legitimate ground of appeal.

C. As to the ground of appeal on Defendant 3’s obstruction of business

In relation to the crime of interference with business by fraudulent means, in order to achieve the purpose of the actor's act, deceptive means to make the other party mistake, mistake, or land (see, e.g., Supreme Court Decisions 91Do221, Jun. 9, 1992; 2003Do504, Mar. 25, 2005). The establishment of the crime of interference with business is sufficient if it does not require the actual occurrence of the result of interference with business, and it does not require the risk of causing interference with business (see, e.g., Supreme Court Decision 2003Do7927, Mar. 26, 2004).

In full view of the evidence in its holding, the court below acknowledged the fact that Defendant 3, a management company specialized in improvement projects, which was operated by Nonindicted Co. 3, a management company specialized in improvement projects, which was known from the previous year, had been notified of the business performance of Nonindicted Co. 3 and Nonindicted Co. 4, a competitor, by comparing and explaining to the promoters at the meeting of the committee meeting of the promotion committee for the promotion committee in Zone 6 of Maamamam No. 6 for the selection of a rearrangement project for the purpose of selecting Nonindicted Co. 3, a management company specialized in improvement projects, which was operated by Nonindicted Co. 2, a management company specialized in improvement projects, as a rearrangement project for the housing redevelopment project in Zone 6 of Maamam No. 6, the court below recognized the fact that Defendant 3 had a false notification of the business performance of Nonindicted Co. 3, a management company subject to selection, reduced the business performance of Nonindicted Co. 3 and the competitor Co.

2. We examine ex officio Defendant 3’s violation of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

The court below found Defendant 3 guilty on this part of the facts charged by applying Articles 85 subparag. 9 and 69(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, which did not register a rearrangement project management business, provided compensation from the committee for promotion of housing redevelopment project in Zone 6, and consulted on the collection of written consent required for authorization to establish a redevelopment project and the selection of a contractor

However, Article 85 subparagraph 9 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents was amended by Act No. 9444, Feb. 6, 2009, which was following the decision of the court below, and Article 69 (1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents was deleted as to providing advice and suggestions to the promotion committee or the project implementer concerning the matters referred to in each subparagraph of Article 69 (1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, which are necessary for the implementation of the rearrangement project. However, in light of the fact that there is no transitional provision on the application of penal provisions concerning the advisory activities of those who registered the rearrangement project management business before the amendment of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, even though they are not registered as the rearrangement project management business entity, it shall be deemed that the previous measure was revised as above in consideration of the reflective results that the former measure was unfair

Thus, the new law is applied pursuant to Article 1(2) of the Criminal Act because the act does not constitute a crime due to the change of law after the crime. Therefore, the judgment of the court below that applied Article 85 subparag. 9 and Article 69(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents cannot be maintained as it is.

3. Conclusion

Therefore, among the judgment of the court below, the part against Defendant 4 corporation, the part against Defendant 1 and Defendant 2, the part against the Framework Act on the Construction Industry, and the part against the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents against Defendant 5, and the part against the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents against Defendant 3 should be reversed. Since the court below sentenced each of the above crimes against Defendant 5 and Defendant 3 and the part against the remaining guilty in concurrent crimes under the former part of Article 37 of the Criminal Act, it is reversed in its entirety

Justices Park Si-hwan (Presiding Justice)