Composition Construction Co., Ltd. (Attorney Kim Sung-sung, Counsel for defendant-appellant)

Do Governor of Gyeonggi-do;

April 20, 2018

Daegu District Court Decision 2017Gudan10420 Decided January 19, 2018

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The defendant's disposition of business suspension for four months against the plaintiff on March 6, 2017 shall be revoked.

1. Quotation of the first instance judgment

The reasoning of the judgment of the court on this case is as follows, in addition to adding a judgment on the plaintiff's assertion as follows, since the reasoning of the judgment of the court of first instance is the same as that of the judgment of the court of first instance. Thus, it is accepted in accordance with Article 8 (2) of the Administrative Litigation Act and Article

2. Additional determination

A. The plaintiff's assertion

1) The provision on the deferment of termination by analogy

Article 13(1)1-2 of the Enforcement Decree of the Framework Act on the Construction Industry provides that “a financial institution, etc. designated by the Minister of Land, Infrastructure and Transport shall determine and publicly announce the detailed standards concerning the appraisal of financial status, credit standing, etc. and provision of security, and the issuance and termination of the confirmation amount of possible guarantee amount, such as cash deposit,” and Article 6 subparag. 5 of the Ministry of Land, Infrastructure and Transport Notice (hereinafter “Notification of this case”) provides that “the issuing agency shall immediately terminate the confirmation document where the value of cash or security deposited due to changes in the financial status of the person to whom the confirmation document is issued or the issuing agency’s exercise of security right falls short of the standards, but may postpone termination for a certain period in accordance with the internal regulations of the issuing agency in cases of changes in financial status.” Meanwhile, according to the proviso to the part of “detailed standards for issuance and termination of the confirmation amount of confirmation amount of confirmation amount of the specialized construction mutual aid association, such as decline in the credit rating or execution of seizure, etc., the issuing agency shall provide for supplementation of the period.”

이 사건 고시 제6조 제5호와 전문건설공제조합의 ‘보증가능금액확인서 발급 및 해지에 관한 세부기준’의 공시내용 중 효력해지 부분의 단서 규정은 확인서를 이미 발급받은 자에 대하여 발급기관의 해지사유 및 유예사유를 정한 것이므로, 원고가 2016. 6. 3. 건설공제조합으로부터 출자증권을 환급받아 건설공제조합을 탈퇴한 후 2016. 6. 14. 새로 전문건설공제조합에 출자하여 보증가능금액확인서를 발급받은 이 사건의 경우에 위와 같은 해지 유예에 관한 규정을 곧바로 적용할 수는 없다고 하더라도, 원고는, 건설공제조합이 ‘채무자 회생 및 파산에 관한 법률’에 의하여 인가된 회생계획에 따라 이미 면제된 회생채권 등으로 인한 손해의 보전을 요구하며 보증서 발급 등을 거부하는 바람에, 어쩔 수 없이 건설공제조합에서 탈퇴한 후 전문건설공제조합에 새로 가입하는 과정에 불과 11일 동안만 건설업 등록기준에 미달한 것이므로, 위와 같은 해지유예에 관한 규정을 이 사건에 유추적용하여 그 유예기간 내에 보완이 이루어졌다고 봄이 타당하다. 따라서 보증가능금액확인서가 제출되지 않아 토목건축공사업과 조경공사업에 대한 건설업 등록기준에 미달하였다는 것을 사유로 한 이 사건 처분은 위법하다.

2) The proviso of Article 83 subparagraph 3 of the Framework Act on the Construction Industry shall apply mutatis mutandis.

The main sentence of Article 83 subparagraph 3 of the Framework Act on the Construction Industry provides that "if a constructor fails to meet the standards for registration of construction business under Article 10," the proviso provides that "if a constructor's business falls short of the standards for registration, such as temporary failure to meet the standards, etc., prescribed by Presidential Decree," it shall not impose sanctions such as suspension of business, etc. by providing that "the same shall not apply to cases prescribed by Presidential Decree," and Article 79-2 of the Enforcement Decree thereof (amended by Presidential Decree No. 27299, Jun. 30, 2016; hereinafter "former Enforcement Decree of the Framework Act on the Construction Industry") lists any of subparagraphs 1 through 3 in specific cases. This case does not directly fall under any of the exceptions listed in Article 79-2 of the Enforcement Decree of the Framework Act, but Article 79-2 of the Enforcement Decree of the Framework Act does not provide for exceptions, such as technical ability, capital, which has a certain reason and the period of falling short of the standards for registration, it shall not apply to the proviso of Article 138.

B. Determination

1) As to the assertion of analogical application of the provision on deferment of termination

As recognized by the Plaintiff, Article 6 subparag. 5 of the Notice of this case and the proviso on the part concerning the termination of the term “detailed standards for the issuance and termination of the confirmation amount of the confirmation amount” of the Specialized Construction Mutual Aid Association provide for the grounds for the termination of the issuing agency to the person who has already been issued the confirmation amount, and where certain cases exist, the termination may be postponed. However, the Plaintiff has invalidated the validity of the confirmation amount of the confirmation amount issued by the Construction Mutual Aid Association on May 27, 2016 under an agreement with the issuing agency of the confirmation amount. As such, the provision concerning the grounds for termination and postponement of termination of the issuing agency in this case where the validity of the confirmation amount is invalidated under an agreement with the issuing agency of the confirmation amount of the confirmation amount cannot be applied by analogy. Furthermore, since the Plaintiff was newly issued the confirmation amount of confirmation amount from the Special Aid Mutual Aid Association on June 14, 2016 to June 13, 2016, the Plaintiff cannot accept the Plaintiff’s assertion that the confirmation amount of the confirmation amount of construction business is already issued.

2) As to the assertion of analogical application of the proviso of Article 83 subparagraph 3 of the Framework Act on the Construction Industry

The main sentence of Article 83 subparag. 3 of the Framework Act on the Construction Industry provides that "if a constructor fails to meet the standards for the registration of construction business under Article 10, it shall be excluded from cases prescribed by Presidential Decree, such as temporary failure to meet the standards for the registration of construction business," and Article 79-2 of the Enforcement Decree of the Framework Act on the Construction Industry provides that "the proviso

2. Where a corporation subject to the proviso to Article 542-8 (1) of the Commercial Act falls short of the standards for registration due to the reduction of total assets as of the end of the latest business year, and where the period falling short of the standards for registration is less than 50 days, due to the death, disappearance, or retirement of a person who has the technical ability referred to in Article 13 (1) 1, falling under any of the following subparagraphs:

The legislative purpose of the Framework Act on the Construction Industry is to ensure the proper execution of construction works and the sound development of the construction industry by regulating the registration of a person running a construction business. As such, the interpretation of the grounds for exception to the disposition of suspension of business pursuant to the proviso of Article 83 subparagraph 3 of the Framework Act on the Construction Industry should be strict. If there is no provision concerning the submission of confirmation amount for reasons for exception to the disposition of suspension of business under the proviso of Article 79-2 of the former Enforcement Decree of the Framework Act on the Construction Industry established by delegation of the proviso of Article 83 subparagraph 3 of the Framework Act on the Construction Industry, the submission of confirmation amount should be deemed to be based on the legislator’s intent that it does not recognize the grounds for exception to the disposition of suspension of business even if the reasons for falling short of the registration standards are temporary, even if it falls short of the registration standards, (i) Article 6 subparagraph 5 of the same Act does not apply to the case where the issuing agency temporarily fails to meet the standards for the disposition of suspension of business due to changes in its financial status or the execution of security rights.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Judges Jeong Jong-sung (Presiding Judge)