Defendant

Prosecutor

Ise-dong

Attorney Park Jon-hun et al.

Seoul Central District Court Decision 2005Da3660 Delivered on April 12, 2006

The prosecutor's appeal is dismissed.

1. Summary of the prosecutor's grounds for appeal;

The term "construction" as prohibited by Article 21 of the Framework Act on the Construction Industry refers to "the execution of construction work by a constructor who has completed registration of construction business in an appropriate manner using his name or trade name to receive or execute construction works." The term "the commencement and completion of construction works" immediately refers to "the commencement and completion of construction works." If construction works are carried out for a long time by lending a constructor's name, it shall be interpreted that the act of lending a name during the construction period shall continue to exist. However, the court below rendered a judgment of acquittal against the defendant on the ground that the statute of limitations has lapsed for each of the crimes of this case by deeming that the time of commencement of the act of lending a construction business license as the time of commencement of construction works conducted by lending a license. Thus, the court below erred by misapprehending the legal principles on the expiration of the crime of illegally lending a constructor and the statute of limitations

2. Relevant Acts and subordinate statutes;

Framework Act on Construction Industry

Article 21 (Prohibition of Lending Construction Business Registration Certificate, etc.) No constructor shall have another person receive a contract for or execute construction works by using his/her name or trade name, or lend his/her construction business registration certificate or construction business registration pocketbook.

A person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than one year or by a fine not exceeding 10 million won:

4. A constructor and his other party who violate the provisions of Article 21;

3. Summary of the facts charged and judgment of the lower court

A. Summary of the facts charged in this case

As the representative director of the non-indicted 1 corporation, the defendant, as the constructor, had the non-indicted 2, a non-licensed constructor, perform the subcontracted work using the name of the defendant company, and receive 4% of the construction cost as the rental fee, and around October 2001, the non-indicted 2 made the non-indicted 3 corporation and the construction cost of the non-indicted 486,563,232 won (name omitted) enter into a contract for the soil cutting work from October 10 to June 30, 202 of the same year, and made the non-indicted 2 enter into the contract for the new apartment cutting work from April 1, 201 to April 30 of the same year, and constructed it between the non-indicted 3 corporation and the construction cost of the non-indicted 541,489,316 won (name omitted) from April 1, 201 to September 30, 2002.

B. Judgment of the court below

As to the above facts charged, the act of lending the name of a constructor to supply or execute construction works using his name or trade name to another person shall be completed when the construction works are supplied by another person or the construction work is commenced using his name (see Supreme Court Decision 89Do2173, Apr. 10, 1990). Each of the above facts charged shall be deemed to have been completed at the time of the completion of the statute of limitations since the defendant let the non-indicted 2 receive construction works under the name of each of the defendant, and it shall be deemed to have been completed at the time of the commencement of construction works on Oct. 10, 201 or on Apr. 11, 202. Meanwhile, each of the above facts charged shall be punished by imprisonment for not more than one year pursuant to Articles 96 subparag. 4 and 21 of the Framework Act on the Construction Industry or by a fine not exceeding ten million won, and the statute of limitations for a public prosecution shall be deemed to have been completed at the time of the completion of two years after the expiration of the statute of limitation of limitation of limitation of limitation of limitation of prescription of three years.

4. Judgment of the court below

A. The issues of the instant case

The start point of the statute of limitations begins from the time when a crime was committed. As such, it is determined when the start point of the crime of violation of the Framework Act on the Construction Industry should be viewed as the start point of time. For judgment on the start point of the crime of violation of the Framework Act on the Construction Industry, first of all, it is necessary to determine whether the above crime constitutes a state crime or a continuous crime

(b)the criteria for the distinction between the state offender and the continuous offender;

A state-based crime refers to a crime that is completed by infringing a certain legal interest or causing danger of infringement of legal interest, which is committed, and is also terminated, and which is not necessary to continue to commit an offense by an actor. Even if the illegal state continues after the termination, it is reasonable to deem that the act after the termination is not punishable as an act after the termination of the statute of limitations as long as it can be included in the original illegal state. The statute of limitations is run immediately after the expiration of the statute of limitations regardless of the continuation of the illegal state. As such, as mentioned above, murder, bodily injury, larceny, etc. may be included in the example of the state-based crime.

On the other hand, a continuous crime is a crime that continues to be committed even after the completion of the crime while the violation or danger of the legal interest is being committed, and the continuation of the act and the continuation of the illegal state are consistent with the offender as it continues until the illegal state caused by the act wants by the actor. However, the establishment of the term of the continuous crime is equal to the state crime in that the continuation of illegal state after such term has reached the number of illegal state, and the continuation of the act depends on the will of the actor, and the act continues during the continuation of the illegal state and only after the completion of the illegal state is completed, it is distinguishable from the state crime. Since the continuous crime is not a crime by the realization of the elements of the crime, but is a crime for the realization of the elements of the crime by the continuing criminal intent of the offender, for example, the crime of intrusion upon residence does not reach the completion of the crime with the entry of residence, and as long as the crime has not been completed, most of the crimes, such as arrest and detention, etc., as mentioned above, do not proceed.

C. Whether the violation of the Framework Act on the Construction Industry should be deemed as a continuous crime

However, the act of illegally lending the name of a constructor subject to punishment pursuant to Article 96 subparag. 4 and Article 21 of the Framework Act on the Construction Industry is an act of consenting to or understanding the constructor’s trade name or trade name for the same purpose with the knowledge that the other person is qualified to use his/her trade name or name and that the constructor should use his/her name or trade name for the same purpose. ① The act of the constructor consenting to or understanding the other person to use his/her name or trade name, ② the act of the other person to use the leased name or to execute the construction works constitutes a single constituent element. The subject of supply and demand or construction is limited to lending the other person’s name, and it is difficult for the constructor to interpret the meaning of “construction” under the law as the process from the commencement of construction works until the completion of construction works. Thus, even if it is difficult to recognize that the act of lending the other person’s name or trade name to the other person, which constitutes an act of lending the license or trade name after the completion of construction works, as well as the act of lending the license or trade name of the construction works.

D. Sub-determination

Therefore, each of the crimes of this case was completed by allowing the defendant to supply construction works under the name of each of the defendant company to the non-indicted 2, and it was completed on October 10, 2001 or on April 11, 2002. Each of the above crimes is an offense subject to imprisonment with prison labor for not more than one year or a fine not exceeding ten million won under Article 96 subparagraph 4 or Article 21 of the Framework Act on the Construction Industry, and the statute of limitations falls under three years under Article 249 (1) 5 of the Criminal Procedure Act. According to the records, each of the crimes of this case constitutes a case where it is obvious that the prosecution of this case was instituted on June 29, 2005, which was three years after the date on which each of the above crimes was completed, and the statute of limitations expires.

Therefore, the judgment of the court below that acquitted the defendant for the same purport is not erroneous in the misapprehension of legal principles, and the prosecutor's above assertion is without merit.

5. Conclusion

Therefore, since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Jong-dae (Presiding Judge)