2015dan63 Violation of the Building Act

1.A

2.B

Maximum Pest Pest (Public Prosecution) and Yellow Blue (Public Trial)

Law Firm 00, Attorney Park Jong-soo, Counsel for the defendant-appellant)

March 24, 2016

Defendants are not guilty.

1. Summary of the facts charged

Defendant A is the contractor and owner of the 00 multi-family house located in the Seo-gu in Gwangju, and Defendant B is the designer and the construction supervisor of the above multi-family house.

(a) Violation of the Building Act due to submission of an interim report on supervision prepared falsely;

From October 18, 201 to March 23, 2012, Defendants: (a) constructed the said multi-family house; (b) installed the apartment house at intervals of 200m x 200m x 301m x 303m x 303m (average price) depending on the design drawings; (c) installed the steel bars around the rooftop at intervals of 201m x 200m x 200m x 200m m x 309m (average price); (d) installed the apartment house at intervals of 80m; (c) installed the apartment house at the end of the two windows; (d) installed the apartment house at the distance of 20m from March 23, 201; (e) installed the apartment house at the intervals of 20m; (e) installed the apartment house at the intervals of construction permission at the time of construction permission; and (e) installed the apartment house at the middle of Gwangju, Defendant B’s name and the construction report at the construction supervision office.

As a result, Defendants conspired to prepare and submit an interim report on supervision in a false manner without any justifiable reason.

(b) Violation of the Building Act due to submission of a false report on completion of supervision;

Although the instant multi-family house was built differently from the design drawing as described in the foregoing paragraph A, Defendant B prepared a false report on the completion of supervision at the 00 architect office located in Seo-gu, Gwangju, on March 23, 2012, with the content that the said building conforms to the construction design and the relevant Acts and subordinate statutes, and stated “A” in the name column of the reporter, and affixed A’s seal which he had been kept in custody with the permission from Defendant A in his name, and then submitted it to the head of Gwangju-gu, the competent authority through the Doz., the computer system for construction administration.

As a result, Defendants conspired to submit a false report on completion of supervision without good cause.

2. Relevant statutes;

It is as shown in the attached Form.

[At present, the Supreme Court Decision 2000Do13651 Decided November 24, 2000] The former Enforcement Rule of the Building Act (amended by Ordinance of the Ministry of Construction and Transportation No. 189 of May 11, 1999) concerns the form of the "Intermediate Report" and the "Intermediate Report on Supervision Completion" as set out in [Attachment 23-3 and 23-4 of the former Enforcement Rule of the Building Act (amended by Ordinance of the Ministry of Construction and Transportation No. 189 of May 11, 199].

3. Determination

A. According to an interim supervision report (Evidence No. 4, 14, No. 4, 14; hereinafter the pertinent number is stated), an excretory investigation (5, 17, 22), photograph (7, 15, 37), design load (16), structural calculations (36), etc., the following facts are acknowledged:

1) The multi-family house entered in the facts charged (hereinafter “multi-family house in this case”) was built differently from the design documents, such as the facts charged.

2) As stated in the facts charged, Defendant B prepared a supervision report including the interim report and the supervision completion report (hereinafter referred to as the “interim report and the supervision completion report”) and the “supervision interim report and the supervision completion report” combined with the “supervision interim report and the supervision completion report” as stated in the facts charged, Defendant B did not see only the part that “if the case was executed differently from the design documents” or “if the case was executed after the completion of the construction work” in the instant supervision report, it did not state separately in the column of “other matters” or “comprehensive opinion”.

B. However, in light of the relevant laws and regulations as seen earlier, it is reasonable to view that the project supervisor, while preparing a supervision report, shall state the determination or opinion as to whether the pertinent laws and regulations specified in the supervision report are appropriate, and that the determination or opinion as to whether the construction has been executed according to the design documents do not need to be written in a reflect manner. The reasons are as

1) Attached Form 21 of the former Enforcement Rule of the Building Act (amended on April 1, 2011) provides that "The present condition after completion of construction" in the respective relevant laws and regulations referred to in the "Standards for Building Act (Ordinance)" are only in the form of making the relevant contents written in the "General Opinion" and does not explicitly state the determination or opinion as to whether construction has been completed in accordance with the design plan.

2) With respect to measures to be taken when a project supervisor checks matters that have not been executed in accordance with design documents in the course of supervising the construction work, Articles 25(2), 25(3) and (6), 106, 107, 110 subparag. 2 and 5, and 113(2)1, etc. of the former Building Act are separately prescribed in Articles 25(2), 25(3) and (6), 106, and 107

C. Therefore, it cannot be readily concluded that the contents of the instant supervision report prepared to the effect that the instant multi-family house conforms to the relevant laws and regulations merely with the fact that the instant multi-family house was not constructed according to the design documents, and the evidence submitted by the prosecutor alone does not conform to the relevant laws and regulations specified in the supervision report of the instant case, and it is insufficient to recognize that the instant multi-family house was prepared and submitted with a false report to the effect that the instant multi-family house conforms to the relevant laws and regulations, even though the Defendants knew that the instant multi-family house was inappropriate in the relevant laws and regulations, and there is no other evidence to support this (in the instant facts charged, only mentions that the instant multi-family house was not constructed as the snow book, and it is not specific in what relevant laws and regulations are inappropriate. At the investigation stage of the instant case, this study focuses on whether the instant multi-family house was constructed in conformity with the relevant laws and regulations.)

4. Conclusion

Therefore, since the facts charged in this case constitute a case where there is no proof of crime, each of the Defendants is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, since the Defendants did not consent to the public announcement of the verdict of innocence, it is not possible to decide whether to make public announcement of the verdict of innocence pursuant to the proviso of

Do governor

1) Under Article 21(5) of the former Building Act (amended by Act No. 5895 of Feb. 8, 1999), the construction supervisor prepares and submits documents.

The interim report on supervision and the completion report on supervision are in conformity with the Acts and subordinate statutes" or "supervision opinions" shall be in the column, Article 2(1)15 of the same Act;

Enforcement Decree of the same Act (amended by Presidential Decree No. 16284 of Apr. 30, 1999), Article 19(6)3 of the same Act (amended by Presidential Decree No. 16284 of Apr. 30, 199

5. Results of performing the original work supervision under Article 19-2 of the Ordinance of the Ministry of Construction and Transportation (amended by Presidential Decree No. 189); and

shall include the opinion or judgment of the construction supervisor, and it shall be found in the course of supervision by the construction supervisor.

The judgment and opinion of the construction supervisor on the existence of any violation of the Building Act and other related Acts and subordinate statutes of the body shall be stated therein.

Nxa (Supreme Court Decision 2000Do1365 Decided November 24, 2000).

2) The form was in force at the time of preparation and submission of the instant supervision report.

3) It is the law that was enforced at the time of the preparation and submission of interim and completion reports on supervision as stated in the facts charged.

4) Attached Form 21, which was in force at the time of the preparation and submission of the intermediate report on supervision and the report on completion of supervision as stated in the facts charged, shall be April 1, 201.

In reference, in attached Form 21 as amended on April 1, 201, the "measures to Prevent Heat Loss of Building Equipment" is included in the attached Form as amended on the ground of reference.

Article 66 of the Building Act (Municipal Ordinance). However, the Building Act was amended on January 13, 2016 and is currently in force.

Article 15 of the Green Buildings Construction Support Act was changed to "The Building Act (Municipal Ordinance) criteria for the above item."

Relevant statutes

【former Building Act (amended by Act No. 11690, Mar. 23, 2013; hereinafter “former Building Act”) 3)

Article 25 (Supervision of Construction Work of Building)

(2) A project supervisor who supervises construction works shall do so under this Act, orders or dispositions under this Act, and other related Acts and subordinate statutes.

If the contractor finds a violation or fails to perform the construction work in accordance with the design documents, the project owner;

shall notify the contractor of any corrective or reconstruction, and the contractor shall, after receiving a request for the reconstruction

without complying with a request for reconstruction or reconstruction, a written request may be made to suspend the construction work.

(c) A contractor requested to suspend construction works in such cases shall suspend construction works immediately, except in extenuating circumstances;

of this section.

(3) A project supervisor who has received a request for corrective measures or reconstruction from a contractor pursuant to paragraph (2), but complies with such request.

(1) If the Corporation continues to perform a project even after it has been requested to suspend the project, it shall be prescribed by Ordinance of the Ministry

each agency shall report to the competent permitting authority.

(5) A project supervisor shall keep and maintain a supervision log, as prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs.

If the progress of the project is different from the Jindo prescribed by Presidential Decree, the interim report on supervision shall be filed and the project shall be completed.

Upon completion, each written report on completion of supervision as prescribed by Ordinance of the Ministry of Land, Transport and Maritime Affairs;

A project owner shall submit a report to the owner of the relevant building, and the project owner shall do so when he/she files an application for approval for use of a building under

A report on supervision and a report on completion of supervision shall be submitted to the competent permitting authority.

(6) A project owner or contractor shall request the correction or reconstruction of any violation pursuant to paragraphs (2) and (3).

(1) The appointment of a project supervisor on the ground that he/she reported any violation to the permitting authority.

No one shall revoke the payment of remuneration or refuse or delay the payment of remuneration or give any disadvantage thereto.

Article 106 (Penal Provisions)

(1) A person who conducts design, construction works, or construction supervision, in violation of Article 23, 24 (1), or 25 (2).

Multi-user during the warranty period under Article 28 of the Framework Act on the Construction Industry after the commencement of the project due to poor performance.

Risk to the public by causing serious damage to the foundation and main structural parts of a building for use.

A person who causes the occurrence of a crime shall be punished by imprisonment for not more than ten years.

(2) Any person who causes death or injury to another person by committing a crime referred to in paragraph (1) shall be punished by imprisonment for life or imprisonment for at least three years.

(1) Any person who commits a crime under Article 106 (1) by negligence on duty shall be punished by imprisonment or imprisonment without prison labor for not more than five years or fifty

Any person shall be punished by a fine not exceeding.

(2) Any person who commits a crime under Article 106 (2) by negligence on duty shall be punished by imprisonment with or without prison labor for not more than ten years or by one hundred

shall be punished by a fine under this section.

Article 110 (Penal Provisions)

Any of the following persons shall be punished by imprisonment with labor for not more than two years or by a fine not exceeding ten million won:

2. A project owner or contractor who violates any provision of Article 16, 21 (3), 22 (3), or 25 (6);

5. He/she violates Article 25 (2) by receiving a request for corrective measures or reconstruction from a project supervisor;

or even if requested to suspend construction, the contractor shall continue to perform the construction

6. Submission of the interim report or the completion report on supervision without justifiable grounds, in violation of Article 25 (5);

or a person who prepares and submits a false document;

Article 113 (Administrative Fines)

(2) Any of the following persons shall be punished by an administrative fine not exceeding three hundred thousand won:

1. A project supervisor who fails to submit a report, in violation of Article 25 (3);

【Enforcement Rule of the Building Act】

Article 19 (Supervision Reports, etc.)

(3) The interim report on supervision, the completion report on supervision and the date of supervision under Article 25 (5) of the Act shall be as shown in attached Table 21,

Attached Forms and Attached Forms 22.4