[1] The case where a “convenior manufacturer” is subject to criminal punishment under the interpretation of Article 42 subparag. 1-3 and Article 24-2(2) of the former Construction Technology Management Act and Article 47-3(2) of the Enforcement Decree of the Construction Technology Management Act

[2] The case affirming the judgment below which acquitted the defendants, who are ready-mixed manufacturers, on the facts charged of violating the former Construction Technology Management Act, that they manufactured and supplied ready-mixed in violation of the Korean Industrial Standards

[1] Articles 24-2(2) and 42 subparag. 1-3 (see current Article 42 subparag. 2) of the former Construction Technology Management Act (amended by Act No. 9848, Dec. 29, 2009); Article 47-3(2) of the Enforcement Decree of the Construction Technology Management Act / [2] Articles 24-2(2) and 42 subparag. 1-3 (see current Article 42 subparag. 2) of the former Construction Technology Management Act (amended by Act No. 9848, Dec. 29, 2009); Article 47-3(2) of the Enforcement Decree of the Construction Technology Management Act

[1] Supreme Court en banc Decision 92Do1428 delivered on October 13, 1992 (Gong1992, 3190) Supreme Court Decision 2006Do265 delivered on June 2, 2006 (Gong2006Ha, 1300)

Defendant 1 and three others

Prosecutor

Seoul High Court Decision 2009No2678 decided December 24, 2009

All appeals are dismissed.

The grounds of appeal are examined.

Article 42 subparag. 1-3 of the former Construction Technology Management Act (amended by Act No. 9848, Dec. 29, 2009; hereinafter the same shall apply) provides that construction materials and members certified with the Korean Industrial Standards under Article 24-2(2) of the same Act shall be used, or construction materials and members deemed appropriate by the Minister of Land, Transport and Maritime Affairs shall be punished by imprisonment with labor for not more than two years, or by a fine not exceeding 20 million won, and Article 24-2(2) of the same Act provides that a constructor and a manufacturer of ready-mixed concrete or asphalt concrete shall use construction materials and members within the scope of 00 million won when he/she intends to perform construction works prescribed by Presidential Decree, such as construction materials and members certified with the Korean Industrial Standards under the Industrial Standardization Act, or any other construction materials and members deemed appropriate by the Minister of Land, Transport and Maritime Affairs, and Article 47-3(2) of the Enforcement Decree of the Construction Technology Management Act shall be limited to more than 1.500 billion won or more.

With respect to the interpretation of the above provisions, the lower court determined that: (a) manufacturers of ready-mixeds are punished only for the use of construction materials and members not certified or recognized by the Minister of Land, Transport and Maritime Affairs in accordance with Korean Industrial Standards (KS) or for the use of recycled aggregate under the Act on the Promotion of Recycling of Construction Wastes in the construction work performed by constructors or registered housing constructors (limited to civil engineering works with a total construction cost of at least KRW 500 million or specialized construction works with a total construction cost of at least KRW 200 million) in excess of 1,00 cubic meters or at least 2,00 cubic meters of ready-mixed or asphalt concrete; and (b) such construction work is not a manufacturer or registered housing constructor’s use of recycled aggregate in accordance with Article 2 subparag. 1 and subparag. 2 of the Construction Industry Management Act, and it is clear that the former Construction Technology Management Act separates construction materials and members from recycled containers, in light of the manufacturer or registered housing constructor’s standpoint, and it is clear that the latter is not a manufacturer or registered housing constructor’s.

Furthermore, the lower court maintained the first instance court that acquitted the Defendants on the charge of violating the former Construction Technology Management Act, on the ground that: (a) Defendant 4 Co., Ltd. and the rest Defendants, who are mere manufacturers of ready-mixed, did not use in order to obtain certification of the Korean Industrial Standards or recognition of the suitability of the Minister of Land, Transport and Maritime Affairs; and (b) simply manufactured and supplied ready-mixeds in violation of the Korean Industrial Standards (KSF4009) did not constitute a crime, on the ground that the facts charged of violating the former Construction Technology Management Act were not included therein.

Examining each provision and legislative intent of the Construction Technology Management Act, etc., the judgment of the court below is just and it is not erroneous in the misapprehension of legal principles as otherwise alleged in the ground of appeal.

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)