Defendant 1 and one other

Defendant 2 and Prosecutor

Cho Jae-rein (prosecutions) and Park Jong-young (public trial)

Gwangju District Court Decision 2015 High Court Decision 323 Decided January 18, 2016

Defendant 2 (Counter-board: Nonindicted 2) and the Prosecutor’s appeal are all dismissed.

1. Summary of grounds for appeal;

(a) Public prosecutor (as to the defendant 1 (as to the defendant)):

(1) misunderstanding of facts and misunderstanding of legal principles (as to the acquittal portion in the original judgment)

According to the evidence submitted by the prosecutor, defendant 1 can fully recognize the fact that the construction business without registration is conducted. Nevertheless, the judgment of the court below which acquitted this part of the facts charged is erroneous.

(2) Unreasonable sentencing

The punishment sentenced by the court below against Defendant 1 (5 million won of a fine) is too unhued and unfair.

B. Defendant 2

The punishment (three million won of a fine) declared by the court below is too unreasonable.

2. Determination

A. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

(1) Based on the circumstances stated in its reasoning, the lower court acquitted the Defendant of this part of the charges on the ground that the Defendant could not be deemed to have engaged in construction business without registration on the sole ground that the Defendant subcontracted the entire “○○○ Public Security Center Construction” to Defendant 2 again.

(2) The penal provisions shall be strictly interpreted, and if their meaning is unclear, it shall be interpreted favorably to the defendant. It is clear that Defendant 1’s subcontracting all of the “○○○○ Public Security Center Construction” subcontracted by Nonindicted Co. 1 to Defendant 2 does not constitute “construction work” under Article 2 subparag. 4 of the Framework Act on the Construction Industry. Therefore, the judgment of the court below is just and the prosecutor’s allegation in this part is without merit.

B. Determination on the prosecutor's and Defendant 2's assertion of unreasonable sentencing

The defendants' act of sub-subcontract or non-registered construction business is an unfavorable condition because of the risk of undermining the development of the construction industry and causing unexpected damages to the ordering person, and there is a great need for punishment.

On the other hand, the defendants generally recognize and reflect their mistakes properly, and there is no record of punishment for the same kind of crime against the defendants.

In addition, comprehensively taking account of the circumstances leading to the instant crime, the circumstances after the instant crime, the Defendant’s age, character and conduct, and environment, etc., the Prosecutor’s assertion that the sentence imposed by the lower court to Defendant 1 is too weak, or that the sentence imposed to Defendant 2 is too unreasonable. As such, the Prosecutor’s and Defendant 2’s assertion are without merit.

3. Conclusion

Therefore, since the appeal by the defendant 2 and the prosecutor 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 Lee Jong-soo(Presiding Judge)