205No2004 Violation of the Framework Act on the Construction Industry

Park ○

Defendant

nan

Attorney Park Do-young

Busan District Court Decision 2005MaMa55 decided August 25, 2005

May 22, 2008

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

A. Legal principles

Article 95 subparag. 2 of the Framework Act on the Construction Industry (including a case where a non-contractor's act is included in the act of a constructor, the above provision is unconstitutional). The facts charged in this case where the defendant tendering for government-funded construction works conducted by the Public Procurement Service, etc. on behalf of the constructor is not satisfied the requirements for the crime of violation of Article 95 subparag. 2 of the Framework Act on the Construction Industry. Nevertheless, the court below erred by misapprehending the legal principles on the violation of the Framework Act on the Construction Industry, thereby adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

Even if the charge against the defendant is found guilty, the sentence of the court below (one year of imprisonment) against the defendant is too unreasonable.

2. Determination

A. Summary of the facts charged in this case and the judgment of the court below

Although the defendant is not required to submit an estimate of another constructor in a tender of construction work, he is planned to receive a fee equivalent to 5% of the successful tender price from a successful bidder after obtaining a separate bid price from a 90 or more other constructors at the time of an electronic bid for government-funded construction work conducted by the Public Procurement Service, the Ministry of National Defense Headquarters, etc., and after receiving an estimate of a large number of construction companies in the vicinity of the successful tender price through an electronic certificate and a failure 200 million won, and the defendant submitted an estimate of 70 billion won to 40 billion won to the Public Procurement Service of Seocho-gu Seoul Special Metropolitan City from June 23, 2004 as stated in the judgment of the court below, the defendant was found guilty of 70 billion won for each of the above construction companies, including 30 billion won electronic bidding documents and 40 billion won in the name of the ○○○○ Corporation and 00 billion won.

B. First, we will examine whether the subject of subparagraph 2 of Article 95 of the Framework Act on the Construction Industry is limited to the constructor.

(1) The process of alteration under Article 95 of the Framework Act on the Construction Industry

(1) Article 50 of the former Construction Business Act [Law No. 3501 of December 31, 1981]

Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than five years or by a fine not exceeding 20 million won:

1. Where a constructor tenders at a manipulated price in advance or interferes with submitting an estimate or bidding by another person in collusion with other bidders for competitive bidding;

(2) Article 59 of the former Construction Business Act [Law No. 3765 of December 31, 1984]

Any person who falls under any of the following subparagraphs shall be punished by imprisonment for not more than five years or by a fine not exceeding 50 million won:

1. A constructor who makes a tender at a manipulated price in advance, submits an estimate of another person, or interferes with an act of tender in collusion with other bidders;

(3) A person who commits any of the following acts in a tender for construction works under Article 95 of the former Framework Act on the Construction Industry [Act No. 5230, Dec. 30, 1996] (the same as the current law) shall be punished by imprisonment for not more than five years or by a fine not exceeding 50,000 won:

1. Act of tendering at a manipulated price in advance in collusion with other bidders for the purpose of making undue profit or impairing fair price-fixing;

2. Act of presenting an estimated tender of another constructor; and

3. Obstructing tenders of other constructors by deceptive means, threat of force or other means (2)

Article 95 subparagraph 2 of the current Framework Act on the Construction Industry does not specify the subject of this crime as a constructor. However, each applicable provision of the former Construction Business Act, which is the roots of the Framework Act on the Construction Industry, limits the subject of the above crime to a constructor. Article 95 of the Framework Act on the Construction Industry, which is subject to the protection of "tender for construction works", and this is a special provision of Article 315 of the Criminal Act, which provides for the obstruction of bidding, because it is specially aggravated punishment of constructors who engage in any act detrimental to the fairness of bidding in a construction project, as seen in the text of the same subparagraph or the provisions of subparagraphs 1 and 3 of the same Article which are concurrently related to the same Article (see, e.g., Supreme Court Decisions 200Do4700, Feb. 9, 2001; 2007Do2032, Jul. 26, 2007).

C. Judgment of the court below

In light of the above legal principles, since the defendant was a representative of ○○ Co., Ltd. with the purpose of business consulting business for constructors on behalf of constructors, and the defendant did not voluntarily bid construction works as a constructor, this part of the facts charged cannot be found guilty. Thus, the defendant's assertion pointing this out has merit.

3. Conclusion

Therefore, the judgment of the court below which found the defendant guilty of the facts charged of this case is erroneous in the misunderstanding of legal principles, which affected the conclusion of the judgment. Since the defendant's appeal to this purport is with merit, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged in the instant case is the case that does not constitute a crime as seen above, and thus, a judgment of innocence is rendered pursuant to the former part of Article 325 of the Criminal Procedure Act.

Judges - Judges

Judges

Judges