Defendants shall be punished by each fine of KRW 10,000,000.

If the Defendants did not pay each of the above fines, each of the above fines of KRW 50,000 was converted into one day, the Defendants shall be confined to the Labor House.

To order the Defendants to pay the amount equivalent to the above fines.

A. The Defendants asserted the following as the grounds of appeal in common.

(1) Regarding the receipt of proposals after the expiration of the deadline and false entry of the time for receipt

Defendant 3 received the proposal of Samsung Securities consortium and the proposal of Samsung Securities consortium which was submitted after the closing time of the submission of the proposal of this case from the bidding participant, and entered matters in the receipt ledger as if they were received within the last time. However, at the time, Defendant 3 called Defendant 3 to the person related to the Samsung Securities consortium and the person related to the Samsung Securities consortium at the time of call that the submission of the proposal would be somewhat delayed due to each traffic certificate, and each time when the proposal was submitted is within 10 minutes from the last time, it cannot be deemed unlawful as acts within the discretionary authority. ② At the time of receipt of each of the above proposals, Defendant 3's act cannot be deemed unlawful as acts within the scope of discretion. ② At the time of receipt of the above proposals, Defendant 3 did not yet constitute the affairs of the Selection Committee, and ③ the receipt of proposals from the bidding participant does not constitute the affairs of the Selection Committee, and thus, Defendant 3's act did not constitute the crime of interference with business by misapprehending the legal principles of interference with business of the Selection Committee.

(2) As to the modification of the appraisal sheet:

(A) Defendant 2 and 3 found unreasonable appraisal table which was resolved by the Sales Review Committee on February 26, 2004 (hereinafter “pre-revision appraisal table”) and revised it on March 25, 2004. The instant Selection Committee decided to use the post-revision appraisal table (hereinafter “after revision”) revised on March 31, 2004 as the criteria for review for the selection of weekly companies for sale. After the revision, the Defendants decided to use the ELD Securities consortium as the first and second grade for the determination, but the lower court did not err by misapprehending the legal principles on the pre-sale appraisal table as stated in its reasoning, and did not err by misapprehending the legal principles on the pre-sale appraisal table to the selection committee’s authority to view that the pre-sale appraisal standard table was the same as the revised appraisal standard table, and thus, the lower court did not err by misapprehending the legal principles on the pre-sale appraisal standard table as the corrective review committee’s determination authority’s authority to use the weekly appraisal standard table as the one for sale review.

(B) Even if the Defendants’ act of modifying the evaluation table constitutes interference with business, the instant Selection Committee did not have resolved on March 31, 2004 to select a weekly sales agent, and thus, it is merely an attempted interference with business. However, the lower court erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment by misapprehending the legal doctrine, thereby adversely recognizing the Defendants to have caused interference with business.

(3) Unreasonable sentencing

The punishment sentenced by the court below against the defendants (one year of imprisonment for each defendant and two years of suspended execution) is too unreasonable.

B. Defendant 1 separately asserts the following grounds for appeal.

Although Defendant 1 did not have conspired with Defendant 2, 3 as to the crime stated in the facts constituting the crime in the judgment of the court below, the court below erred by misapprehending the rules of evidence and misunderstanding the facts, thereby finding Defendant 1 to have committed the crime stated in the judgment of the court below in collusion with Defendant 2 and 3, thereby adversely affecting the conclusion of the judgment.

C. The gist of the prosecutor’s appeal is as follows:

The sentence imposed by the court below against the Defendants is too uneasible.

2. The judgment of this Court

Before the judgment of the grounds for appeal above, the prosecutor examined the above facts charged ex officio, and the prosecutor applied for the modification of the indictment with the contents of the facts charged in this case, and this court permitted it. As such, the judgment of the court below which is subject to the judgment on the facts charged before the modification cannot avoid reversal without the need to decide on each of the grounds for appeal.

3. Conclusion

Therefore, without examining the above grounds for appeal, the judgment of the court below is reversed ex officio pursuant to Article 364 (2) and (6) of the Criminal Procedure Act without examining the above grounds for appeal (Provided, That the part of the facts charged before and after the change in the grounds for appeal is judged separately after the change in the above grounds for appeal) and the following decision is made

한국자산관리공사가 2000. 1.경부터 2002. 6.경까지 공적자금을 투입하여 주식회사 대우건설(이하 ‘대우건설’이라고 한다)의 주식 157,233주, 의결권 지분 약 57% 상당을 매입, 보유한 상태에서, 대우건설의 경영상태가 어느 정도 정상화되자, 한국자산관리공사가 2003. 12. 30. 대우건설 주식을 1% 이상 보유하고 있는 채권금융기관과 함께 대우건설 출자전환주식 공동매각협의회를 구성하고, 한국자산관리공사가 보유하는 주식 중 매각 가능 주식 150,125주 및 위 협의회 소속 금융기관 보유 주식 150,071주 등을 한국자산관리공사 주관으로 국제경쟁입찰을 통하여 매각하여 공적자금을 회수하기로 결정하는 한편, 위와 같은 대우건설 출자전환주식 매각업무를 주간하는 주간사를 우선 국제경쟁입찰 방식으로 선정하기로 하여, 2004. 2. 26. 공적자금관리위원회 매각심사소위원회에서 그 절차와 방법, 선정 심사에 필요한 평가표(이에 의하면, 계량항목 중 수수료 총 30점 항목의 배점이 수수료율 20점, 부대비용 5점, 착수금 5점으로 나누어져 있고, 수수료율의 평가구분 단계가 5등급으로 되어 있어 1등급의 편차가 4점에 이르고, 착수금의 경우, 착수금이 없는 경우는 5점, 착수금이 있는 경우는 2점이고, 부대비용도 금액에 따라 5점, 3점, 2점으로 점수를 부여하게 되어 있었고, 비계량 항목 중 인적구성란의 배점이 10점, 업무기여도란의 배점이 5점으로 되어 있었다, 이하 ‘수정 전 평가표’라고 한다) 등을 의결하였으며, 2004. 3. 8. 한국자산관리공사가 대우건설 출자전환주식 매각주간사 제안서를 2004. 3. 23.까지 제출받는다는 공고를 하여, 삼성증권 및 씨티그룹 컨소시엄(이하 ‘삼성증권 컨소시엄’이라고 한다)과 엘지투자증권 및 골드만삭스 컨소시엄(이하 ‘엘지증권 컨소시엄’이라고 한다) 등이 2004. 3. 23.까지 각 제안서를 제출하였는바, 당시 한국자산관리공사가 배드뱅크(Bad Bank) 관련 업무를 주관할 수 있도록 주식회사 엘지투자증권이 재정경제부에 의견서를 제출하는 방법 등으로 상당한 도움을 주어 2004. 3. 초순경 한국자산관리공사가 배드뱅크 업무를 주관하게 된 것에 대한 보답으로 위 입찰에서 엘지증권 컨소시엄이 매각주간사로 선정되도록 도와주기 위하여, 피고인 2, 3은 각 입찰업체들의 제안서를 개략적으로 검토한 결과, 엘지증권 컨소시엄의 제안서에는 매각대금 대비 수수료율 부분이 ‘주관회사단이 합의한 금액의 0.65%를 지급하고 1주당 가격을 기준가격보다 높게 매각하는 경우 초과분에 대하여 2 내지 3%의 성과급을 지불한다’라는 취지로, 부대비용이 ‘최대 미화 10만불, 10% 초과시 재협상’, 착수금이 ‘월미화 10만불’로 기재된 반면, 주요 경쟁 업체인 삼성증권 컨소시엄의 제안서에는 수수료율이 ‘매각대금의 0.65%’, 부대비용이 ‘공사 승인분에 한하여 청구’로, 착수금은 받지 않는다는 취지로 기재되어 있어 매각심사소위원회에서 2004. 2. 26. 의결한 위 수정 전 평가표에 의하여 수수료 부분을 평가할 경우 엘지증권 컨소시엄이 삼성증권 컨소시엄보다 불리할 것으로 판단되자, 피고인 3이 2004. 3. 23. 자정 무렵 당시 해외출장 중이던 피고인 1과 국제전화를 하여, 피고인 2, 3이 위 수정 전 평가표를 엘지증권 컨소시엄에게 유리하도록 수정하기로 한 후, 피고인 2, 3이 2004. 3. 일자불상경 계량항목 중 수수료 항목의 배점을 수수료율 25점, 부대비용 및 착수금 5점으로 조정하여 부대비용과 착수금 항목에서 엘지증권 컨소시엄과 삼성증권 컨소시엄의 차이를 줄이고, 수수료율의 평가구분도 13단계로 구분하여 1단계의 편차를 줄이고, 비계량 항목 중, 인적구성란의 배점이 10점, 업무기여도란의 배점이 5점으로 되어 있던 것을 인적구성란 배점을 5점으로, 업무기여도 배점을 10점으로 조정하는 등 엘지증권 컨소시엄에 유리하게 항목을 수정하여 새로운 평가표(이하 ‘수정 후 평가표’라고 한다)를 작성한 다음, 2004. 3. 29.경 피고인 1이 해외출장에서 돌아오자 피고인 2, 3이 위와 같은 매각주간사 선정 절차 진행과정이나 수정 후 평가표 등을 피고인 1에게 보고하면서, 매각심사소위원회의 매각주간사 선정에 사실상 중요한 영향을 미치는 한국자산관리공사 제2차 매각주간사 선정위원회(위원장 피고인 2와 내부위원 피고인 3 및 5명의 민간위원들로 구성된다)의 의결 절차에서 수정 후 평가표가 진정한 심사기준인 양 위 5명의 민간위원들에게 제시하여 위 민간위원들로 하여금 위 수정 후 평가표에 의하여 엘지증권 컨소시엄에게 유리하게 평가하게 함으로써 위 이 사건 선정위원회의 5명의 민간위원들의 매각주간사 선정에 관한 심사업무를 방해할 것을 공모하고,

On March 31, 2004, the committee for the selection of the second weekly sales company composed of Defendant 2, Defendant 3, and five civilian members (non-indicted 1 through 5) was held in the Gangnam-gu Seoul Samsungdong Assets Management Training Office on March 26, 2004. Defendant 2 and 3 made the above five civilian members a false statement that the evaluation table after the above revision is the same as the evaluation table before the revision resolved by the Sales Examination Subcommittee. As a result of having the civilian members make an evaluation by the evaluation table after the revision at their discretion, it was evaluated as 478 points from the total point of 600 points to the maximum point of 600 points to the total point of 465 points, thereby interfering with the second weekly sales of the 5th weekly sales company of the 2nd weekly sales company.

Articles 314(1), 313, and 30 of the Criminal Act (Selection of Imprisonment)

1. Suspension of execution (the defendants);

Article 62 (1) of the Criminal Code

A. Defense Counsel's assertion

The defense counsel argues that the civilian members of the Selection Committee of this case decided the evaluation table after revision in accordance with the evaluation criteria, and therefore, the evaluation and resolution of the bidder company is merely a matter of exercising their authority as an examiner of the Selection Committee, and it does not constitute a continuous work or business based on his occupation or social status, and therefore, it does not constitute a work subject to protection of interference with business.

B. The judgment of this Court

The evaluation and resolution by the civilian members of the Selection Committee of this case for the selection of the main company for sale is the affairs continuously engaged in according to the social status of the member of the Selection Committee of this case commissioned by the Korea Asset Management Corporation and is subject to protection of the crime of interference with business. Therefore, the above assertion by the counsel is without merit.

2. Whether there has been interference with the business; and

A. Defense Counsel's assertion

For the following reasons, a defense counsel shall claim that there is no interference with the appropriate review work of the civilian members of the Selection Committee of this case.

(1) According to the provisions of 3.b. b., the internal rules of the Korea Asset Management Corporation, the Committee on the Selection and Operation of Services Agency(s) has the authority to decide on the criteria for evaluation to be applied to the selection of sales week, and the evaluation table decided by the Committee on the Evaluation of Sale under the Public Funds Management Committee, which is a consulting agency, is not obligated to be used as the criteria for the evaluation. Thus, since the members of the Selection Committee of this case decided that the evaluation table should be used as the criteria for the evaluation to select weekly company after revising the evaluation table which is different from the revised evaluation table decided by the Committee on the Evaluation of Sale, the evaluation of the revised evaluation table by the

(2) Since the evaluation table after the revision is far more fair and reasonable than the evaluation table before the revision, the evaluation by the evaluation table after the revision constitutes an appropriate evaluation task.

B. The judgment of this Court

(1) First, we examine whether the selection committee of this case can use the evaluation table and other evaluation table as the criteria for examination by its own resolution.

(A) Relevant statutes

(1) The Committee for the Management of Public Funds (hereinafter referred to as the "Committee") shall be established in the Ministry of Finance and Economy to comprehensively deliberate on and coordinate matters concerning the operation, etc. of

(2) The Committee shall deliberate on and coordinate the following matters:

7. Matters concerning the recovery of public funds, such as sale of assets, such as stocks, etc. held by the following institutions:

(c) Korea Asset Management Corporation under the Act on the Disposal of Non-Performing Assets, etc. of Non-Performing Corporation;

Article 12 (Matters necessary for Operation, etc. of Committee)

Article 19 (Sale, etc. of Assets)

(1) The Government, the Korea Deposit Insurance Corporation and the Korea Asset Management Corporation shall endeavor to minimize the burden on the people by selling assets, such as stocks, at an appropriate price.

(2) A subcommittee on sales examination (hereinafter referred to as "subcommittee") shall be established under the Committee to examine the appropriateness of sales of assets by the Government, the Korea Deposit Insurance Corporation and the Korea Asset Management Corporation.

(5) Matters necessary for the composition and operation of subcommittees shall be prescribed by Presidential Decree.

Article 11 (Composition of Subcommittees for Examination for Sale)

(3) Matters necessary for the operation of subcommittees, other than those prescribed by this Decree, shall be prescribed by the chairperson of a subcommittee after resolution by a subcommittee.

(B) Facts of recognition

The following facts can be acknowledged in full view of the evidence duly adopted and examined by the court below.

(1) Article 13(1) of the Operational Rules of the Public Funds Management Committee based on Article 5 of the Enforcement Decree of the Special Act on the Management of Public Funds provides that "The Government, the Korea Deposit Insurance Corporation, and the Korea Asset Management Corporation shall present matters related to the sale of assets, such as stocks of financial institutions held by the relevant institutions, to the Committee after deliberation by a subcommittee for examination on sale under Article 19(3) of the Act: Provided, That it may be presented to the Committee in advance where the Chairperson considers it necessary to present

② According to Article 13-1 of the Regulations on the Operation of the Sales Review Sub-Committee based on Article 11(3) of the Enforcement Decree of the Special Act on the Management of Public Funds, the sales review sub-committee provides that the matters concerning the selection of advisory agencies, such as daytime, shall be deliberated and decided

③ On January 16, 2004, the Public Funds Management Committee, which was held on January 16, 2004, passed a resolution on the promotion of the 2004 Korea Asset Management Corporation, its assets and conditions after deliberation by the sales review subcommittee. Accordingly, with respect to the 58th sale review subcommittee held on February 26, 2004, the 58th sale review subcommittee, which was held on February 26, 2004, shall select the 3 to 5 candidates by a written evaluation method based on the proposal of each bidder in the 1st selection committee in which the relevant experts participate, and shall select 3 to 5 candidates by the first selection committee on the basis of the proposal of each bidder in the 2nd selection committee, after selecting the final candidate agency for the candidates selected at the 1nd stage in the 2nd selection committee, after deliberation by the 2nd selection committee and the proposal review and evaluation, decided to determine the 2nd sale week after deliberation by the sales review committee, while making a resolution on the 2nd selection criteria for sale.

(C) According to the above provisions and facts of recognition, in case where the sales review subcommittee with authority to examine the appropriateness of the sale of assets of Korea Asset Management Corporation, including the weekly company’s selection of advisory agencies, has decided on the evaluation table to select the weekly company, the appropriateness of the selection of the weekly company is determined by the evaluation table decided by the sales review subcommittee. Thus, in case where the Korea Asset Management Corporation selects the weekly company, it is necessary to select the weekly company based on the evaluation table decided by the sales review subcommittee. In this case, according to the resolution of the Public Funds Management Committee on January 16, 2004 as seen above, the selection of the weekly company for the sale of stocks held on February 26, 2004 by the 58th appraisal review subcommittee with authority to examine the appropriateness of the sale of assets of Korea Asset Management Corporation, including the weekly company’s selection of advisory agencies, it seems to be difficult for the management review committee to establish the revised evaluation table to determine the evaluation guidelines of Korea Asset Management Corporation to use the evaluation guidelines for each bidding company’s selection as the revised evaluation guidelines for the above.

(2) Next, comprehensively taking account of the health awareness that the evaluation table after the revision is far more fair and reasonable than the evaluation table before the revision, and the evidence duly adopted and examined by the court below, it is not deemed that the evaluation table after the amendment is far more fair and reasonable than the evaluation table before the amendment.

(3) Therefore, this part of the defense counsel's assertion is without merit.

3. Whether he/she has attempted to do so.

A. Defense Counsel's assertion

The defense counsel asserts that since the selection committee of this case decided on March 31, 2004 as the main agent for sale, the Defendants' act is merely an attempted crime of interference with business.

B. The judgment of this Court

The establishment of the crime of interference with business does not require the actual result of interference with business, and it is sufficient that there is a risk of interference with business. Thus, as stated in the decision of the court below by the defendants in collusion with the defendants, they belong to the civilian members by pretending that the evaluation table was the evaluation table which was adopted by the Sales Examination Sub-Committee after arbitrarily correcting the number of defendants 2 and 3, and that it was caused by the civilian members to make a resolution of evaluating the EL securities consortium at first and second level under the evaluation table after revising the correction, thereby causing the risk of interference with the duties of the civilian members of the Selection Committee of this case. Thus, the defendants' act constitutes the completed part of the crime of interference with business. This part of the defense counsel's assertion is without merit.

Judges Lee Sung-hun (Presiding Judge)