The Passing of the Act on the Division of Design and the Supervision of Small Scale Buildings and the Future Ahead
The 8th of January saw the passing of the The partial amendment of the Building Act. It had previously been passed by the Land Infrastructure and Transport Committee (LITC) on 18 December and had been pending in the 2nd subcommittee of the Legislation and Judiciary Committee (LJC). This final decision took place after the legislation had been proposed under Article 51 of the National Assembly Act, with a partial amendment of the law as an alternative by the LITC, thereafter passing the plenary session of the National Assembly on the same day. As such, the Ministry of Land Infrastructure and Transport (MOLIT) has passed this legislation as an amendment to the Building Act in adherence with the Comprehensive Countermeasures for Reinforcing Safety in Buildings, which was created with the purpose of resolving the fundamental problems underlying safety hazards in buildings. This article will deal with the specific contents of the legislation, what the process entailed, and what should be thought of this new piece of legislation in the future.
reported by Shim Youngkyu
#1 On 8 January, the members of the Korea Institute of Registered Architects (KIRA) received a group text authored by its chairman Cho Chung Kee. It read as follows: ‘The Act for the Improvement of the Supervisory System for Buildings has been passed in the plenary session of the national assembly at 16:50, 8 January 2016. While there were successive interruptions made by interested parties and many difficulties ensued, it was possible to overcome such obstacles due to the committed support and dedication of our members.’
#2 On 21 December 2015, at around 10:30, a ‘Gathering Opposing the Act on the Division of Design and Supervision of Small Scale Buildings’ met in the basement of the K’ART Studio Myeongdong. Around 100 architects participated in this event. Several architects were key in the organization of the gathering and the presentation of their petition. They voiced their common opinion that ‘the revision to the law was unconstitutional as it limited the project owner’s right to choose the supervisor.’ The online petition entitled ‘The Amendment of Article 25 of the Building Act: A Petition In Opposition to The Act on the Division of the Design and Supervision of Small Scale Buildings’ saw the overwhelming support of over 2,300 signatures in the space of five days.
#3 Ten years ago, SPACE published a special feature entitled ‘The Need to Redefine the Realm of Supervision’ in February 2006 (issue 459). The feature noted the general consensus in the architectural field at the time on the topic of the division of design and supervision, as well as future alternatives and the opinions of other architects. Beyond this, the feature also repeatedly highlighted the issue of the system by which the designing architect of the project could not participate in the supervision process of large scale constructions. The April 2014 issue of SPACE also included an article entitled ‘Territory of Architects and Construction Managers’.
A Swift and Cutting Procedure
While the amendment was mostly about including more safety related content, the main issue was with Article 25. According to the new article, prescribed by presidential decree, the main body to authorize permission (the local government) would designate a registered architect rather than the designer architect of the building as the construction supervisor for small-scale buildings. This requires a closer look at the exact contents and wording of the amended Act. The former first clause of Article 25 (Supervision of Building Projects) stipulates that ‘A project owner who erects a building for use of the size and structure prescribed by Presidential Decree shall designate an architect or any person prescribed by Presidential Decree as a project supervisor, who shall be responsible for supervision of the project.’ The newly amended Article 25 is now expanded to include the following: “Notwithstanding the provisions made by each paragraph of clause 1 of Article 41 of the Framework Act of the Construction Industry, small-scale building projects prescribed by presidential decree that are constructed through the means of the project owner, or buildings which are being built for the purpose of sale by lots, must designate a construction supervisor from among those who have not participated in the design of the project in question. This is notwithstanding the fact that those who designed the building may be designated as construction supervisor, in the case that the project owner requests authorization under that which is prescribed by the decree of the Ministry of Land Infrastructure and Territory. In that case the project in question is subject to one of the following clauses: 1. Building projects which have been designed through the application of new technologies in accordance with Article 14 of the Construction Technology Promotion Act. 2. Building projects which have been designed by notable architects determined under clause 4 of Article 13 of the Architecture Service Industry Promotion Act. 3. Building projects which have been designed through design competitions.” In summary, a registered architect, other than the designer architect, must be designated as the project supervisor in the case of small-scale buildings that are to be constructed for the purpose of selling in lots and which are built directly by the project owner. An exemption clause was also included. KIRA had previously aimed to apply this legislature to all small-scale buildings, but it was then limited to 1) buildings that are constructed within the means of the project owner, and 2) buildings that are built for the purpose of sale in lots as these buildings are judged to be more prone to safety hazards. At the time that the Act was passed through the LJC, ‘small scale buildings’ and ‘those subject to sale in lots’ were added as a legal justification, eventually being approved in the plenary session. Joh Sung-Yong (principal, Sungyong Joh Architect Office) expressed his frustration that ‘this is a fundamental problem that has persisted since the birth of the system of registered architects in Korea since the 1960s, and while the issue received greatest attention in 1984 and 1992, it still stands to be resolved.’ Why would an issue that has been postponed for decades suddenly come to life again, like a zombie, and what have the opposing parties, the Korean Institute of Architects (KIA) and Korea Architects Institute (KAI) been doing during this time? Moreover, why was it that architects were so belated in their dissension on site?
A Raging War Within
The situation, which seems like one of a film scenario, is not an ‘incident’ that has suddenly occurred, but rather a part of ‘history’ that one must observe by looking over the past fifty years. A close look at the situation and contents of the issue of dividing the design and supervision of small scale buildings that has been actively presented from 2004 can be thought to resemble a ‘parallel theory’. While there were numerous attempts to amend the Act in 2004 and 2006, the amendment continued to be postponed due to a failure of establishing a consensus between interested parties, as well as the lack of consensus again in 2012 for the Act on the Division of the Design and Supervision of Small Scale Buildings representatively proposed by Kim Taeheum (elected member of Saenuri Party ) Yet, this time, it was MOLIT that actively proposed the amendment, and it was the LITC that passed the Act. The act, which in previous years had always been blocked by the LITC, again due to the lack of consensus between parties, was able to swiftly pass through both the LJC and the plenary session as soon as MOLIT reinforced the legislation with a strong drive under the pretext of ‘comprehensive safety reinforcement measures’. On the other hand, the integration of associations under KAI is already a pointless fight, and KIA and KIRA are still fighting over whether to use the terms ‘registered architect’ or ‘architect’. Recently KIRA even sent a proposal to the Seoul Metropolitan Government to use the term ‘registered architect’ in the International Union of Architects, which will be hosted in Seoul in 2017. Furthermore, while the two groups have been bickering over who is eligible to be part of the ‘Young Architects Awards’, important issues such as the scope of the profession of architecture have fallen off of the agenda?all subject to these internal conflicts within the architectural field and te unimportant problems of personal interest between these different professional groups. Is it impossible for representative professional groups to voice their opinion together? MOLIT has shown its disapproval at the introduction of ‘management after design’ which entails supervising within the realm of design, a decision with which both parties have agreed. MOLIT has simply stated that ‘applying the system of design management after construction on small-scale buildings, a practice that is currently carried out for public projects, will unnecessarily increase the number of construction management staff members to three people.’
Why would the area of construction supervision be directly related to the scope of the profession of architecture? First it is necessary to observe how the Building Act defines supervision. The supervision system was first introduced in the Certified Architects Act in December of 1963. The construction of private projects was defined as ‘work by the registered architect for confirming whether buildings larger than a certain capacity were being constructed according to the blueprint’, and the construction of public projects would introduce contractor supervision systems at the contract phase of the project. Thereafter, this changed at a level consistent with the amendment and revision of a number of different legislations. The Regulations on Construction Supervision which was enacted in 1984, was thereafter amended as the Construction Technology Management Act which emphasized the importance of the supervisory role in 1987, ultimately introducing the System of Liability and Management. In May of 2013, it was again amended in the Construction Technology Promotion Act. When seen from the perspective of the scope of the profession, the legislation gradually expanded, first for the simple confirmation of whether construction was carried out according to the design documents, and then to the act of managing the construction firm, thereafter to include the role of supervising safety and supervision in 1995. Ultimately, domestic supervision includes making sure that the intentions of the project designer have been realized in the construction process, as well as investigation and inspection, and furthermore, technical supervision in each of the professional engineering fields of structure, utilities, electricity and infrastructure.
With the Building Act undergoing revision time and again for over fifty years, the concept and definition of supervision has become convoluted. Currently, supervising, according to Building Act, is defined as ‘the act of being responsible for the inspection of construction works to ensure that a building, facilities of a building, or a structure is built or elected in compliance with the details of architectural plans and drawings, under his/her responsibility (including cases where he/she performs such works with assistants), as prescribed by this Act, as well as for guidance and supervision over quality control, project management, and safety control.’ While this is similar to the definition in the Construction Technology Promotion Act, the latter also includes the task of Managing Construction Projects. Hence, supervision is a civic duty that is part of the process of realizing the created design, but has become convoluted due to the public task of confirming the compliance of legal standards, as it is the architectural designer who confirms the legal compliance of their own designs. There is an inherent danger to encouraging violation of the law or faulty construction. Thus it is necessary that the law clearly defines the scope and tasks of supervising, rather than to simply divide the realms of design and supervising. While Article 22 ‘Realisation of the Intended Design’ was created in the Framework Act on the Architecture Service Industry in 2013, the law is not enforceable as it does not clearly define the duties and authorities, and even more so that it is limited to public works of architecture.
While supervising is divided between the capacity and status of on-site supervision, permanent on-site supervision or large-scale or public buildings are seen to be within the realm of professional corporations, and in the middle range, there is a partial market for supervising expenses. The crucial factor of the most recent discussion concerns small-scale buildings that are subject to temporary supervision. The revised article that was passed most recently is for small-scale buildings, yet small-scale supervision is a critical factor that can eventually take up to 98.5% of the number of supervising projects of middle and small-scale supervising, which amounts to over 70% of the revenue (according to the Research for the Improvement of Building Safety Systems from February 2015).
A Greater Mess is the Result of an Attempted Quick Fix
The formation of laws and policies are an important issue. Once they are enforced, it is hard to revise them, and they will eventually result in greater ripple effects on site. The MOLIT and the KIRA can superficially justify their actions by pointing to the issue of safety. They rationalize the proposal by suggesting that design and supervision must be divided to allow the supervision of faulty construction so it can remain in collusion with the construction firm to avoid safety hazards. A MOLIT official has revealed that ‘it is inappropriate for the project owner to designate the supervisor in the event that the project owner is constructing the building within their own means, especially when they are the supplier to a future buyers of sold lots’. However, presidential decrees are those that do not pass through the national assembly, and are confirmed after being reviewed by the administrative department of MOLIT, and thus it is possible that the scope of this law may be extended to a much larger scale. From the opposite point of view, supervision is not always seen as an issue of safety. Some argue that if safety were the real problem, it would be more rational to reinforce responsibility and change the system of surveillance, rather than dividing the realms of design and supervision. This is one of the reasons why many architects understand the issue as an attempt to ‘share the pie’ by certain registered architects who are not able to acquire fair amounts of design work or command supervising fees. While it is commonly perceived that there must be some sort of change in the distorted state of supervising roles for all parties, including KIRA, KIA and KAI, in which they do not have any justifiable authority, responsibility or compensation, it is also understood that the method of delineating supervision and design rather than setting right the system of supervising itself will result in ‘a quick fix’ leading to the downfall of all three interest groups. MOLIT has already stated in a written opinion review of the Act on the Division of Design and Supervision, proposed in 2006, that ‘the enforced division of design and supervision will have a greater impact on limiting the choices of the project owner and the creativity of the designer, in comparison to the impact on reducing faulty construction, further bringing about the side effects of increasing the financial burden of ordinary citizens.’
Fated: A Lose-Lose Situation.
Currently KAI is preparing a constitutional complaint in which they are stating that the revision ‘is unconstitutional as it limits the choice of supervisors for the project owner’, and single person demonstrations and rallies have been planned by the young architects who organized the Myeongdong cathedral gathering. Yet, the die has already been cast and the bus has already departed. What can be done now? As has been pointed out numerous times, this case provides the yardstick by which we can observe the methods used by the architectural field to communicate. Over the time that has passed we have seen a mounting of tension rather than the flowering of a productive discourse. With the absence of fair discussion, the only thing that came about was the slander of each interested party and a prolonged struggle over power during the period over which the LITC was in conference. The majority of architects still do not have a detailed understanding of the position of each party and the contents applicable to each interest group. This is an issue that relates to the survival of architecture itself rather than a struggle between the two interest groups. As long as the two parties are in the same boat, taking sides is pretty meaningless. In spite the long period of time that has passed considering the issue, these civic groups have failed to reach a consensus, resulting in MOLIT choosing the easy path of the division of design and supervision of small scale buildings rather than taking on the challenge to legislate ‘management after design’ at this time when the safety of buildings has become more important than ever due to large-scale accidents At the same time, a consensus has arisen that this may be the opportune moment to fundamentally revise the Building Act. As was previously explained, there is a need to review the outstanding legislature in regard to supervision in order to separate the inspection process which deals with the realisation of design intentions, with the investigation process which deals with the the review process carried out by the public sector. The deputy chairman of KAI, Yoon Seunghyun (principal, Interkerd Architects Inc.) is concerned that this matter is a serious issue, as it could even result in a distortion of the profession of architecture. While supervising is an extension of design, the legally defined role of the architects as it currently stands and the situation on site often radically differ, and the way they are perceived by society is also very different. Park Insoo (principal, PARKiz architects) commented that ‘it is useless to fight over one article in a single law, instead it is necessary to attend to the fundamental problem of the Building Act to mend its objectives and guidelines.’ To this end, a study of the Building Act must be conducted by institutions such as the Korea Legal Research Institute or the Architecture & Urban Research Institute (AURI ). There is also a need for the role of the Presidential Commission on Architecture Policy (PCAP) to take on greater responsibility, which nowadays has lost a lot of its influence. Yoon Seunghyun also suggests that ‘it could be possible to integrate the two organisations as AURI remains under the ordinance of the Korea Research Institute for Human Settlements and the PCAP suffers from limitations from not having an organization.’ Park Insoo also suggests that ‘there is a need to establish civic research groups such as the Construction and Economy Research Institute of Korea, which could be independent from the Ministry of Public Administration and Security to administer pressure, followed by detailed research on the role and duties of the architect in terms of publications, authorization, contracts, specifications and copyright’. Moreover, it is necessary to provide education that can foster architecture legal researchers, administrators and activists. This problem can only be solved by all interest groups working together as one rather than by taking sides. The division of design and supervision could eventually be detrimental to the development of architecture, a development that we all wish to promote. If we can now recognise and accept that the viewpoints and values towards the essence of supervising roles differ, then now is the time to take a closer look at what architecture and supervision fundamentally mean.
On 21 December 2015, at around 10:30, a ‘gathering opposing the Act on the Division of Design and Supervision of Small Scale Buildings’ met in the basement of the K’ART Studio Myeongdong.
They voiced their common opinion that ‘the revision to the law was unconstitutional as it limited the project owner’s right to choose the supervisor.’