[1] Requirements for punishing a corporation’s representative as an unauthorized building act under Article 78(1) of the Building Act

[2] Whether an act of constructing steel structure to build an office of a driving school without permission from the authority constitutes Article 78 (1) of the Building Act (affirmative)

[3] Whether a person who is not a representative of a corporation is subject to punishment under Article 78(1) of the Building Act where a person conducts a construction act without permission

[1] For the purpose of punishing a representative of a corporation as an act of building without permission under Article 78(1) of the Building Act, it should be recognized that the representative of the corporation, who directly instructed the act of building without permission, or the agent, employee, or other workers of the corporation, knew that the act of building without permission was performed without permission. In the case where the act of building without permission is performed merely because the representative, employee, or other employees of the corporation neglected the duty of care to direct and supervise the act of building without permission, the representative of the corporation shall not be punished under Article 78(1) of the Building Act.

[2] Construction of steel-frame structures with a height of 5 meters above the floor area in order to build an office of a driving school without permission from the authority constitutes construction of a building without permission under Article 78 (1) of the Building Act.

[3] Article 78(1) of the Building Act provides that an act of constructing a building without permission is subject to punishment only for the owner (if the owner is a corporation, its representative). Thus, even if a person who is not the representative of the corporation, who is not the owner, without permission, conducts the construction without permission, it shall not be punished pursuant to Article 78(1) of the Building Act except where he can be punished as the representative of the corporation

[1] Article 78 (1) of the Building Act / [2] Article 78 (1) of the Building Act / [3] Article 78 (1) of the Building Act

[2] Supreme Court Decision 77Do1717 decided Dec. 13, 197 (Gong1978, 10537) Supreme Court Decision 81Do1364 decided Jan. 18, 1983 (Gong1983, 458)

Defendant 1 and two others

Defendant 1 and one other and the Prosecutor

Incheon District Court Decision 95No1291 delivered on December 28, 1995

The part of the judgment of the court below against Defendant 1 is reversed and that part of the case is remanded to the Incheon District Court Panel Division. The prosecutor and Defendant 2’s appeal are all dismissed.

1. We examine the Prosecutor’s ground of appeal against Defendant 3.

Article 78(1) of the Building Act provides that the owner of a building who constructed a building without permission in violation of the provisions of Article 8(1) of the same Act shall be punished by imprisonment for not more than three years or by a fine not exceeding 50,000,000 won, and if the owner of a building is a juristic person, the representative of the juristic person shall be punished by the above punishment. In order to punish the representative of the juristic person as an act of construction without permission under Article 78(1) of the Building Act, the fact that the representative of the juristic person instructed the act of construction without permission, or the agent, employee or other worker of the juristic person knew that the representative of the juristic person was to perform an act of construction without permission, or that the juristic person was to perform an act of construction without permission, shall be recognized. It is merely that the representative of the juristic person shall not be punished under Article 78(1) of the Building Act where the act of the juristic person, its agent, employee or other worker neglected to exercise the duty of care to direct

The court below rendered a judgment of innocence against Defendant 3 on the ground that Defendant 3, the representative director of Defendant 2 corporation, conspired with Defendant 1, the factory head, without obtaining permission from the competent authority, from November 1, 1994 to November 24 of the same year, violated Article 78 (1) of the Building Act by conducting construction without permission from the competent authority, and that Defendant 3, the representative director of the company, violated Article 78 (1) of the Building Act. The court below did not report to Defendant 3 on the ground that the construction act of this case was due to the result of the construction work commenced in advance before the competent authority's permission was granted, and there is no evidence to acknowledge that Defendant 3 committed the above construction work in collusion with Defendant 1. The judgment of the court below that Defendant 3 cannot be punished under Article 78 (1) of the Building Act, on the ground that there is no error in the misapprehension of legal principles as discussed in the judgment below.

2. Defendant 2 and Defendant 1’s grounds of appeal are examined.

In order to build a new office of a driving school without permission from an authority, the act of constructing a steel-frame structure with the height of 50 square meters from the 100 square meters and 50 square meters of the floor area of the building from among the areas adjacent to the Act on the Construction of Aggregate Buildings constitutes the act of constructing a building without permission under Article 78(1) of the Building Act (see, e.g., Supreme Court Decisions 77Do1717, Dec. 13, 197; 81Do1364, Jan. 18, 1983); and the decision of the court below to the same purport is just and there is no error of law in the misapprehension of legal principles as to a

However, since Article 78 (1) of the Building Act provides that the act of constructing a building without permission is subject to punishment only for the owner (if the owner is a corporation, the representative thereof). Thus, even if a person who is not the representative of the corporation who is not the owner of the building without permission conducts the construction without permission, it shall not be punished pursuant to Article 78 (1) of the Building Act, except for cases where he can be punished as the representative of the corporation and the accomplice. Nevertheless, although the court below acknowledged that Defendant 1 is merely the owner of the factory of Defendant 2 corporation, the court below decided that the above defendant violated Article 78 (1) of the Building Act. Thus, the court below erred by misapprehending the legal principles on the scope of punishment under Article 78 (1) of the Building Act, and therefore, the part on Defendant 1 among the judgment below is not exempt from reversal.

3. Therefore, a prosecutor and Defendant 2’s appeal shall be dismissed, and the part of the judgment of the court below against Defendant 1 shall be reversed and remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)