In the case of violation of Article 9-2 (1) of the Building Act, whether the general construction supervisor under Article 2 of the Enforcement Decree of the Architect Act is punished pursuant to Article 56 subparagraph 3 of the Building Act.

The act of ordering the owner or construction executor to take measures to prevent the occurrence of danger under Article 9-2 (1) of the Building Act shall fall under the "general construction supervision or regular construction supervision" under Article 2 of the Enforcement Decree of the Certified Architects Act, and the "construction guidance so that the building conforms to the related Acts and subordinate statutes" is not included in the "construction supervision", which is the scope of supervision of the general construction supervision. Therefore, even if the owner or construction executor of the building subject to general construction supervision violates Article 9-2 (1) of the Building Act, the construction supervisor shall not be punished pursuant to subparagraph 3 of Article 56 of the Building Act.

Articles 9-2 and 56 of the Building Act, Article 2 of the Certified Architects Act, Article 2 of the Enforcement Decree of the Certified Architects Act

Defendant

Prosecutor

Original Branch Court of Chuncheon District Court of the first instance (85 high-class 367, Counsel for the defendant-appellant)

The prosecutor's appeal is dismissed.

According to Article 9-2(1) and Article 56 subparag. 3 of the Building Act, the gist of the grounds for appeal by the prosecutor is that the construction executor, as well as the construction supervisor, shall be punished if the construction executor violates the duty to prevent the occurrence of danger, etc. caused by the land excavation work. However, the lower court determined that the person responsible to prevent the occurrence of danger, etc. is limited to the construction executor, and that the construction supervisor is not subject to punishment. Accordingly, the lower court erred by misapprehending the legal principles under Article 9-2(1) and Article 56 subparag. 3 of the same Act, which affected the conclusion of the judgment.

According to Article 9-2 (1) of the Building Act, a person who has excavated land in the course of construction or construction work shall conduct prevention of danger, preservation of the environment, and other necessary rearrangement with respect to the excavated part in accordance with the standards prescribed by the Ordinance of the Ministry of Construction and Transportation. Article 56 subparagraph 3 of the same Act provides that construction supervisor shall punish the owner, construction supervisor, and construction executor who violates the provisions of Article 9-2 (1) of the same Act, and there may be questions as to whether the construction supervisor corresponds to the "person who has excavated land in the course of construction or construction work". However, according to Article 2 subparagraph 22 of the same Act, the term "construction supervisor" is defined as the "person who has constructed construction work under the Certified Architects Act," and according to Article 2 subparagraph 4 of the same Act, the term "construction supervisor" is defined as the "person who has the construction supervisor's duty to investigate whether the building is constructed in accordance with the design document under his own responsibility, instruct the construction executor", and the purpose of the Building Act is to prevent danger and injury to the construction supervisor's duty of Article 1.

According to Article 2 subparag. 2 of the Building Act and Article 2 subparag. 4 of the Building Act, and Article 2 subparag. 5 of the former Enforcement Decree of the Building Act (amended by Presidential Decree No. 1982, Jun. 15, 1985) which had been enforced at the time of the instant case, the construction supervision subject, method and scope of each construction supervision shall be divided into comprehensive construction supervision, resident construction supervision and general construction supervision according to the scale of the building subject to supervision, and the construction supervision shall provide that the construction supervision shall assist each part of the building such as apartment as provided in Article 25(1) of the Enforcement Decree to ensure that the building conforms to the related Acts and subordinate statutes (A) construction supervision or construction supervision within the scope of the building supervision or the comprehensive construction supervision measures to ensure that the building owner is not subject to construction supervision or construction supervision within the scope of the building supervision or the comprehensive construction supervision measures to ensure that the building owner is not subject to construction supervision or construction supervision within the scope of the building supervision or the comprehensive construction supervision measures necessary under Article 6(3) of the Building Act.

Therefore, the facts charged in this case constitute a case which does not constitute a crime and thus, is pronounced not guilty under the former part of Article 325 of the Criminal Procedure Act, and the judgment of the court below which acquitted the defendant as to the same conclusion is just, and therefore, the prosecutor's appeal is without merit under Article 364 (4) of the same Act, and it is so decided as per Disposition.

Judges Lee Han-young (Presiding Judge)