Whether the scope of opinion required to be indicated in the supervision report under the former Building Act includes the content of confirming whether the building has been properly constructed in accordance with the design documents (affirmative) and, at this time, whether the construction of the changed part related to the safety of the building, such as the part requiring the report by each item in the supervision report form, or the part related to the construction of the building, such as the dispatch and

Articles 16(1), 25(5) (see current Article 25(6)), 66 (see current Article 15 of the Green Buildings Construction Support Act), and 110 subparag. 6 of the former Building Act (Amended by Act No. 11690, Mar. 23, 2013); Article 19(3) [Attached Form 21] and [Attachment Form 22] of the former Enforcement Rule of the Building Act (Amended by Ordinance of the Ministry of Land, Infrastructure and Transport No. 123, Sept. 17, 2014);

Supreme Court Decision 2004Do1341 Delivered on August 16, 2004

Defendant 1 and one other

Prosecutor

Gwangju District Court Decision 2016No989 Decided May 2, 2017

The judgment below is reversed, and the case is remanded to the Gwangju District Court.

The grounds of appeal are examined.

1. A. The summary of the facts charged in the instant case is that: (a) Defendant 2, the project supervisor, prepared an interim report on January 10, 2012, stating that the said housing was in conformity with the construction design and relevant statutes; and (b) submitted to the head of Gwangju District Office on March 23, 2012, a false report on the interim supervision and supervision completion to the effect that the Defendants conspired to submit the said report to the head of Gwangju District Office under the name of the project owner Defendant 1, even though the Defendants did not construct the instant multi-family house and the steel bars, heat materials, and corridor windows of the walls at the time of the building permit.

B. On this premise, the lower court determined that the Defendants cannot constitute a crime of violating the Building Act on the ground that the instant multi-family house was not constructed in accordance with the design documents, solely on the premise that the instant multi-family house was not constructed in accordance with the design documents, and that it is difficult to recognize that the Defendants falsely prepared the instant supervision report, knowing that the documents submitted by the inspection alone did not meet any specific statutory standards.

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. The main duty of the construction supervisor under the Building Act is to confirm whether the construction executor constructs the building in conformity with the design documents, and the supervision report is replaced with the interim inspection system and the inspection system that examines whether the building is constructed in conformity with the design documents, and the scope of opinions required to be entered in the supervision report includes confirmation as to whether the building in question is legitimately constructed in accordance with the design documents (see Supreme Court Decision 2004Do1341, Aug. 16, 2004).

However, the construction of a building may not be subject to the duty to report all matters to the construction supervisor on the basis that the construction part of the building did not conform to the design documents. However, the construction of the building requires entry in the supervision report form as to the change of the part requiring a report by each item, or the part related to the safety of the building, such as the dispatch of the building, beams, etc., and it is not necessary to enter the opinion solely on the ground that there is no problem in structural safety.

B. (1) According to the evidence duly admitted by the first instance court and the lower court, the following facts and circumstances are revealed.

① The distribution interval between the rooftop and the wall built on the instant multi-family house is difficult to be deemed as a simple error in construction, and it is a part directly related to the safety of the building, and there was rupture on the wall, etc. of the instant house only two years after the actual completion of construction.

② The heat pipe ratio of a short heat thickness and windows shall comply with the criteria prescribed by the Energy-Saving Design Standards of Buildings under Article 66 of the former Building Act (Article 15 of the current Green Buildings Construction Support Act), which corresponds to the column for “measures to prevent heat loss” in the supervision report (the heat and corridor windows constructed in the instant multi-family house fall short of the first one, and the modification of construction is deemed not to have existed any separate review as to whether the said criteria are met at the time of preparation of the supervision report, regardless of the modification construction).

③ Defendant 1 was the contractor and the owner. Defendant 2, as the designer and the construction supervisor, did not state whether the instant supervision report was lawfully executed in accordance with the design documents, even though he was well aware of the above circumstances, and rather stated in the construction supervisor confirmation column and the general opinion column as “conformity.”

(2) Examining the aforementioned circumstances in light of the legal principles as seen earlier, if the exhaustrout, stove, and windows were constructed differently from the initially permitted design documents, Defendant 2 should have stated in the instant supervision report the opinion as to whether the said parts were legitimately constructed in accordance with the design documents. Nevertheless, the lower court concluded that the Defendants cannot be deemed to have prepared the instant supervision report on the premise that the Defendants did not have a duty to state his opinion as to whether the said parts were constructed in accordance with the design documents solely on the grounds stated in its reasoning, was erroneous by misapprehending the legal principles as to the entries in the supervision report under the Building Act, thereby adversely affecting the conclusion of the judgment.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jae-chul (Presiding Justice)