The purport of the provision of Article 95 subparag. 3 of the former Framework Act on the Construction Industry and the meaning of “tender” under the above provision (=the same concept as “tender” under the Criminal Act)

Article 315 of the Criminal Act; Article 1 and Article 95 subparag. 1, 2, and 3 of the former Framework Act on the Construction Industry (Amended by Act No. 10719, May 24, 201)

Supreme Court Decision 200Do4700 Decided February 9, 2001 (Gong2001Sang, 684) Supreme Court Decision 2001Do2423 Decided November 30, 2001 (Gong2002Sang, 240) Supreme Court Decision 2007Do2032 Decided July 26, 2007, Supreme Court Decision 2008Do3932 Decided September 11, 2008

Defendant 1 and three others

Defendants

Law Firm, Kim & Lee LLC et al.

Seoul High Court Decision 2013No413 decided May 24, 2013

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendants’ violation of the Framework Act on the Construction Industry

Article 95 of the former Framework Act on the Construction Industry (amended by Act No. 10719, May 24, 201; hereinafter the same) provides that a person who commits an act falling under any of the following subparagraphs in a tender for construction works shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 50 million won, and subparagraph 3 provides that “a person who interferes with tenders by other constructors by a deceptive scheme, force, or any other means.” In full view of the purpose of the former Framework Act on the Construction Industry and the legislative intent stipulated the aforementioned penal provision in order to promote the proper construction of construction works and the sound development of the construction industry, this is intended to specially punish constructors who interfere with bidding process in construction works except for the reasons stipulated in subparagraphs 1 and 2 of the same Article, and thus, the concept of “Interference with bidding requirements” under Article 315 of the Criminal Act refers to interference with bidding requirements under Article 200Do4700, Feb. 9, 201,” and the concept of “Interference with bidding requirements” under Article 2015 of the former Framework Act.

According to the reasoning of the judgment below, the court below maintained the judgment of the court of first instance that Defendant 1, 2, and 3 conspired to the selection of the contractor of the housing redevelopment improvement project of this case constitutes "tender", which is the object of the interference with bidding, and that the act of impairing the fairness of bidding by providing money and goods to the association members and demanding them to submit a written resolution on the selection of the contractor, etc., while the tender of the housing redevelopment improvement project of this case was already conducted by Defendant 1, 2, and 3 had been conducted, constitutes a violation of Article 95 subparag. 3 of the former Framework Act on the Construction Industry even if the money and goods paid to each union member are not specified, and further, Defendant Bark Construction Co., Ltd. is liable for the above violation of Article 98(2) of the former Framework

In light of the aforementioned legal principles and records, such determination by the court below is just. Contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles on "tender act" under Article 95 subparag. 3 of the former Framework Act on the Construction Industry, "tender" under Article 95 subparag. 3, "tender interference" under the objects of a bidding interference, procedure for effective bidding which constitutes the elements of a bidding obstruction and the existence of such act, subject of a crime of violating Article 95 subparag. 3 of the former Framework Act on the Construction Industry

2. As to Defendant 3’s violation of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents

According to the reasoning of the judgment below, the court below maintained the judgment of the court of first instance that Defendant 3's act of being entrusted with the affairs concerning the consent to the establishment of an association by the Housing Redevelopment Promotion Committee for the 4th Urban and Residential Environment Improvement Project without registering the rearrangement project management business to the Mayor/Do governor, and the act of being entrusted with the affairs concerning the consent to the establishment of the association by the Housing Redevelopment Promotion Committee for the 4th Urban and Residential Environment Improvement Project (amended by Act No. 9444 of Feb.

In light of the relevant legal principles and records, the judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles on the consent to the establishment of an association requiring registration for rearrangement project management business.

3. Conclusion

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

Justices Kim Yong-deok (Presiding Justice)