(영문) 춘천지방법원 2007.5.11.선고 2005노364 판결

With respect to Defendant leap○○, thirty-four days of detention prior to the pronouncement of the lower judgment shall be included in the above sentence.

However, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

It is not guilty of violation of the Certified Architects Act by using the name of Blue House among the facts charged against Defendant ○○.

Reasons

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

Article 4 of the Certified Architects Act provides a certified architect with a loan of the name of the certified architect, and Article 10 of the Certified Architects Act applies only to the case where a non-certified architect independently provided a certified architect with an independent certified architect's services, and Article 10 of the Certified Architects Act applies only to the case where the certified architect, who is a certified architect, provided the construction design services, etc. of the certified △△△△△△△△△△, provided the employees employed by the certified architect, Defendant 1, who provided the certified architect with a part of the architectural design services, and provided them with the construction design services, who was entrusted by the certified architect, by the certified architect, by the certified architect, and performed the construction design services, etc. subsidized by the Defendant △△△△△△△△△△△, and thus, the Defendants' act was committed in their own name and was found guilty, notwithstanding the fact that the above provisions of the Certified Architects Act were not violated. The judgment

B. The assertion of unfair sentencing

The sentence imposed by the court below against the Defendants is unreasonable.

2. Determination

A. Ex officio determination

Before the judgment on the grounds for appeal above, the prosecutor examined ex officio prior to the judgment on the grounds for appeal, and among the acts listed in Nos. 6, 8, 9, 10, and 14 in the annexed Table No. 6, 8, 9, 10, and 14 among the facts charged, the prosecutor conducted supervision by the defendant le○○, and applied for the amendment of an indictment to the effect that the defendant leap○ had the defendant leap○○ operated supervision by the defendant leap○. Since this court permitted this, the judgment of the court below cannot be maintained

However, despite the above amendment of the bill of amendment, the defendants' above mistake of facts and misapprehension of legal principles are still subject to the judgment of this court without relation to the above amendment of the bill of amendment.

B. misunderstanding of facts and misapprehension of legal principles as to the part concerning the performance of the architect's services by Defendant 1.

Determination on the Grounds for Appeal

(1) Facts of recognition

According to the evidence duly adopted and examined by the court below, Defendant ○○○ is an employee of the architect office from March 1996, and from around December 2, 2000, Defendant △△△△△△△△ operated by Defendant △△△△△△△△, with a view to giving approximately KRW 120,000 per month basic wages and incentives based on the operating profits of the office, but Defendant ○○ was employed by Defendant ○○○ on the condition that Defendant △△△△△, who did not pay basic wages from the second half of the year of 202, and instead, Defendant ○○○○○○○○ was entrusted with the construction design, etc. at the outside, and thereafter, Defendant ○○○○○○○○○○○○○○○○○○’s construction design, etc., and Defendant △△△△△△△△△’s construction supervision, who did not work at the bar of Defendant △△△△△△△△, and Defendant △△’s construction supervision, which independently provided Defendant 200.

(2) Determination

The legislative purpose of the Certified Architects Act is to promote the qualitative improvement of stables by providing for the qualifications of a certified architect and matters concerning its services, while setting strict requirements for the qualifications of a certified architect in order to achieve this purpose, and in light of the relevant provisions of the Certified Architects Act, which are mainly used in the intrinsic purpose to prevent a certified architect from performing the design or construction supervision of a building exceeding a certain size, the term "act of having another person conduct the business of a certified architect by using his/her name" prohibited under Article 10 of the Certified Architects Act includes not only cases where a certified architect instructs another person to conduct the business of a certified architect by using his/her name, but also cases where a certified architect knows or permits another person to conduct the business of a certified architect by using his/her name, or impliedly allows another person to conduct the business of a certified architect. Accordingly, "a non-certified person's construction design or supervision" prohibited under Article 4 of the Certified Architects Act refers to cases where a person who is not a certified architect or a person who conducts construction supervision or supervision without the management or supervision of a certified architect during the business process.

However, according to the above facts in this case, Defendant △△△○ does not merely entrust Defendant △○ with the main duties, such as construction design, etc., to Defendant △△○, but it appears that Defendant △○○ was not actually involved in the process of performing the construction design or supervision by accepting or impliedly allowing Defendant △○○ to independently perform the construction design or supervision by using his name. Defendant △○○ appears not to have been involved in the process of performing the construction work. Defendant △△○, with the above Defendant △△△△’s consent or implied approval or implied approval of the original △△△△△△△△△△, received the construction design, etc. directly from the owner of the building with a separate office from the original △△△△△△△△△, and it appears that Defendant △○ was carrying out the construction design, etc. independently from the owner of the building.

C. As to the assertion of misunderstanding of facts and misapprehension of legal principles as to the portion of the architect's business operation

Determination:

Next, we examine whether the act of Defendant ○○○ was in violation of Article 4 of the Certified Architects Act even with the act of designing a building by using the name of “Bale Blue House”. This part of the facts charged was ordered from the police to the trial of the party, and the construction-related work of this part of the facts charged was directly received from the Ebale House, the owner of the building, and he was entrusted with the work of entering and preparing the design prepared by him from “Baletttch House,” and the preparation of various kinds of other supervisory and permitted documents, etc. in the architectural office operated by him. Accordingly, it is reasonable to view that the act of Defendant ○○○○ was merely merely a mere assisting the construction design of “Bale House”, which is an architect, and therefore, it is insufficient to recognize this part of the facts charged, and there is no evidence to prove this part of the facts charged, and thus, the court below erred in the misapprehension of judgment.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and it is decided again after the oral argument, since there is a ground for ex officio reversal as seen above, and the appeal by ○○○, the defendant, is partially sustainable.

Criminal facts and summary of evidence

The summary of the facts constituting the crime recognized by this court and the evidence related thereto are as follows: (a) Except for the deletion of the "supervision" among the acts listed in the separate sheet Nos. 6, 8, 9, 10, and 14 of the crimes listed in the separate sheet No. 6, 8, 9, 10, and 14 of the crimes listed in the judgment of the court below, all of the judgment below are as stated in each corresponding column of the court below

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Defendant ○○: Article 39 subparag. 2 and Article 4 of the Certified Architects Act.

Defendant original △△△△△: Article 39 subparag. 3 and Article 10 of the Certified Architects Act (Selection of Fines)

1. Aggravation of concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Code

1. Invitation of a workhouse;

Defendant △△△△△: Articles 70 and 69(2) of the Criminal Act

1. Calculation of days of detention;

Defendant ○○: Article 57 of the Criminal Act

1. Suspension of execution;

Defendant ○○○: Article 62(1) of the Criminal Act

Non-Crime

Of the facts charged in the instant case, the Defendant’s construction design using the name of “BB” is found not guilty under the latter part of Article 325 of the Criminal Procedure Act since it constitutes a case where there is no proof of a crime as seen in the foregoing Section 2-C.

Judges

Park Circuit (Presiding Judge)

Lee Byung-Jin

Kim Gona

Site of separate sheet

A person shall be appointed.