Defendant 1 and 1

Defendants and Prosecutor

Electric utility difficulties

Attorney Kim-Hy-hwan

Daegu District Court Decision 2006 High Court Decision 2311 Decided January 17, 2007

The judgment of the court below is reversed.

Defendants are not guilty.

The summary of the judgment against the Defendants is published.

1. Summary of grounds for appeal;

A. Defendants

1) Points of mistake of facts

Although Defendant 2 Co., Ltd. directly performed most of the main works during the contracted construction, and ordered Nonindicted Co. 1 to subcontract only 20% to Nonindicted Co. 1, the lower court recognized that the said Co. 2 subcontracted most of the whole or essential parts of the contracted construction work to Nonindicted Co. 1, thereby adversely affecting the conclusion of the judgment by misunderstanding the facts in the lower judgment.

2) The point of unfair sentencing

Considering the various circumstances against the Defendants, the sentence imposed by the lower court on the Defendants is unreasonable.

(b) Prosecutors;

Considering the harmful effects of the Defendants, such as the scale and frequency of subcontracting, increase in construction costs due to such crimes, and the mass production of defective construction works, etc., the lower court’s suspended sentence of fines of KRW 2 million against the Defendants is unreasonable as the punishment is too unreasonable.

2. Ex officio determination

Before determining the grounds for appeal by the Defendants and the Prosecutor, we examine ex officio the facts charged in the instant case.

A. Summary of the facts charged in this case

The summary of the facts charged in this case against Defendant 1 and Defendant 2 Co., Ltd. (hereinafter “Defendant 2”) is as follows: “1. The representative director of Defendant 2, who is the representative director of Defendant 2, cannot subcontract most of the whole or major parts of his contracted construction work to another constructor. However, at the office of Defendant 2 located in the Si/Gu-U.S. Si/Gu-Eup, Daegu on November 26, 2003, the above company was awarded a contract amount of KRW 625,00,000 for the construction cost from Nonindicted Co. 2 to Nonindicted Co. 1, who runs the above company (mutual omitted) for the entire construction cost of KRW 59,375,00,00 for the construction cost of the ○○ apartment construction and the short-term construction work at the same place as indicated in the attached list of crimes, and the constructor was given a subcontract to the above Nonindicted Co. 1 on February 2, 2002; and the above Defendant’s subcontractor was the representative of each of the above Defendant’s work.

B. Determination

(i) the relevant provisions of the Framework Act on the Construction Industry (hereinafter referred to as the “Act”);

The text of Article 29 (1) of the Act: No constructor shall subcontract all of his contracted construction works, or most of the major parts as prescribed by the Presidential Decree to another constructor.

The term “constructor” in subparagraph 5 of Article 2 of the Act means a person who conducts a construction business by making a registration under this Act or other Acts.

Article 8(1) of the Act: Construction business shall be classified into general construction business and specialized construction business, and construction business subject to registration, etc. pursuant to the provisions of other Acts shall not be classified into general construction business or specialized construction business except as otherwise provided in the relevant Act.

The main sentence of Article 9 (1) of the Act: Any person who intends to operate a construction business shall register with the Minister of Construction and Transportation in general construction business, and a specialized construction business shall register with the Special Metropolitan City Mayor, Metropolitan City Mayor

The main sentence of Article 29 (4) of the Act: Subcontractors shall be prohibited from re-subcontracting his subcontracted construction works to other persons.

2) Determination

In full view of the above provisions, the provision on the restriction of subcontracting under Article 29 (1) of the Act shall be interpreted to apply only to the case where the constructor subcontracts to another constructor. In order to fall under the constructor under Article 2 (5) of the Act, the above non-indicted 1 shall be a person who runs the construction business after registration, etc. under the Framework Act on the Construction Industry or other Acts under Article 2 (5) of the Act. According to the records, the above non-indicted 1 shall only state that he has performed the construction of this case without registration with the competent investigation agency (17 pages) and there is no other evidence to prove that the above non-indicted 1 has been running the construction business after registration, etc. under the Framework Act on the Construction Industry or other Acts, the above non-indicted 1 shall not be deemed to fall under the constructor under Article 29 (1) of the Act. Thus, even if the above non-indicted 1 has given a subcontract to the non-indicted 1, as in the facts charged in the domestic case of this case, the above non-indicted 1 cannot be deemed to fall under this part of the charges.

Thus, since the facts charged in this case against Defendant 1 and Defendant 2 should have been pronounced not guilty because there is no proof of the crime, the judgment of the court below which convicted the defendant 1 and Defendant 2 should have erred by misapprehending the legal principles, which affected the conclusion

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 346 (2) and (6) of the Criminal Procedure Act, and it is again decided as follows after pleading.

As examined in Article 2-1(a) of the Criminal Procedure Act, the summary of the facts charged of this case constitutes a case where there is no proof of crime as seen in Article 2-2(b) of the same Act, and thus, a not-guilty verdict is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act and the summary of this judgment is announced in accordance with Article 58(2

[Attachment Form 5]

Judges Lee Ho-woo (Presiding Judge)