1. Summary of the overall procedures and relevant cases for the purchase business of weapons systems;

According to the reasoning of the lower judgment and the evidence duly admitted, the overall process of the purchase of the weapons systems and the summary of the relevant cases, centering on the ship's hull and the studio search team (hereinafter "the instant sound search team") on board the ship's hull structure (ATS-II," hereinafter "studio") are as follows.

A. The Defense Acquisition Program Administration shall confirm a request for proposal corresponding to the bidding conditions by reflecting the operational performance (ROC) and the opinions of the Navy as determined by the Joint Chiefs of Staff, and accordingly, shall conduct a test and evaluation at the Maritime Headquarters, and on the basis of the result, the Defense Acquisition Program Administration shall determine the types of equipment and, upon the supply of the relevant equipment, conduct a test and evaluation by the Maritime Headquarters through the process of delivery to the Maritime Affairs Headquarters, if the Maritime Affairs Administration determines the types of equipment and concludes a contract based on the results, and then delivers the equipment.

B. On March 2009, the Defense Acquisition Program Administration's project to purchase the instant sound search equipment began in full time with the resolution of the purchase plan for government-funded equipment including the purchase plan for six kinds of government-funded equipment, including the instant sound search equipment.

On or around April 2009, the Defense Acquisition Program Administration: (a) prepared a request for proposal of the instant sound search team (hereinafter referred to as the “Defense Acquisition Program Administration”) and held a request for proposal after deliberation and resolution by the Review Committee and the approval of the head of the vessel project, and the head of the project management headquarters; (b) held a project explanation meeting; (c) on or around June 2009, only Nonindicted Co. 1 (hereinafter referred to as “Nonindicted Co. 1”) participated in the tender, and (d) did not submit a proposal, except for Nonindicted Co. 1, even though the request performance of the instant sound search team was made up on the basis of the existing Pyeongtaek-to-door and the Gu type of luminous box; and (d) it was reflected in the request for proposal; and (e) Nonindicted Co. 1 submitted a proposal that much more meets the requirements performance of the Navy.

Since June 30, 2009 to July 2, 2009, the proposal evaluation team (the head of the team team, Nonindicted 2) conducted an evaluation of the proposal of Nonindicted Company 1 from June 30 to July 2, 2009. In addition to determining some items (one essential condition, two selective terms, and two selective terms) as "conditional fulfillment", the remaining items were determined as "conformity". On July 2009, the Defense Acquisition Program Administration landing Project Team selected the products of ○○○○○ (△△△△△△△△△△) company proposed by Nonindicted Company 1 as "equipment subject to the test evaluation and negotiation."

Accordingly, on August 2009, the Military Manpower Testing and Analysis Evaluation Team for the Navy headquarters (hereinafter referred to as the "HHA") prepared a test planning evaluation report, followed the confirmation procedure by the Analysis and Evaluation Bureau of the Defense Acquisition Program Administration (hereinafter referred to as the "PSA"), and conducted a direct test and evaluation of the instant sound searcher from September 3, 2009 to October 9, 2009 according to the plan, and the Defense Acquisition Program Administration started negotiations with Nonindicted Company 1 separately from the test and evaluation. On October 21, 2009, the Navy: (a) notified the Division of the Defense Acquisition Program Administration of the results of all of the test and evaluation items, such as operational performance, military operation, etc., judged as "heat"; and (b) on November 2, 2009, the Defense Acquisition Program Administration Division notified the results of the aforementioned test and evaluation to the "PSAAAE" for the instant sound searcher.

On November 18, 2009, the Defense Acquisition Program Administration Co., Ltd. entered into a provisional contract for the purchase of the instant musical instruments with Nonindicted Company 1. On the basis of the results of the above test and evaluation, the Defense Acquisition Program Administration’s landing project team prepared a final decision on the commencement of search of the instant musical instruments and presented it to the Business Management Working Committee on November 25, 2009, and obtained the final approval of the said Committee on November 30, 2009 by obtaining the approval of the said Committee from the head of the Business Management Headquarters on November 30, 2009, the said provisional contract became effective as this contract on December 3, 2009.

C. Defendant 3, the head of the Defense Acquisition Program Administration team, was the head of the integrated project management team, and was in the position to exercise overall control over the instant sound search project. However, among the various procedures of the instant sound search project, Defendant 3 was involved in the instant sound search project as the head of the integrated project management team, such as preparing a proposal request, holding and receiving a project explanation meeting, preparing a proposal, selecting the target equipment, and preparing a final decision, etc. separately from the test and evaluation, and the evaluation of the proposal was conducted in the proposal evaluation team, and the evaluation of the proposal was conducted in the Maritime Headquarters under the supervision of the branch of the Defense Acquisition Program Administration, and the request for proposal and the final decision were deliberated and decided by the separate committee. On the other hand, Defendant 5 was the head of the war project division of the Defense Acquisition Program Administration, Defendant 3 was the superior approval authority, and the chairperson of the project management working committee as the chairperson of the project management working committee.

D. Around June 24, 201 under the instant sound search agreement entered into as above, the instant sound search device supplied by Nonindicted Company 1 was put in transit. However, as a result of the operation test, evaluation, and trial operation evaluation conducted by the Korea Coast Guard from May 2013 to December 2013, it was confirmed that Nonindicted Company 1’s “the maximum detection distance OO-meter” presented through the proposal was not satisfied, which is the required range of OO-ray performance of the naval forces reflected in the proposal, and thus, it was determined that it was inappropriate for Nonindicted Company to use the instant sound search device on the grounds of “the lack of contact with the sinking vessel from a flood level, the excessive defense distance error,” etc. After that, it was determined that the instant sound search device was inappropriate for use. However, it was not possible for the Defense Acquisition Program Administration to implement improvement of the performance of the instant sound search machine, but it was notified that the instant vessel was terminated on December 27, 2014, as well as the instant contract.

E. The prosecutor falsely prepared a test and evaluation outcome report by reflecting the foregoing failure of the instant sound search business in the existing Pyeongtaek-si, the Gu type of Mayang-type sound search box reflecting the required military performance, and determining all the test and evaluation results without performance verification data as “satisfy,” and he did not suspend the purchase procedure of the instant sound search machine that does not satisfy the required performance. On the other hand, the prosecutor tried to prepare false official documents and event charges related to the preparation of the military performance, and the charge of delivering Nonindicted 3, etc., the Chief of the Maritime Headquarters's electric power planning force force force force force force force force team leader, etc., the Minister of the Maritime Affairs and Evaluation, the Chief of the Maritime Affairs and Security, and Nonindicted 4, the Navy Chief, and Nonindicted 5, etc., were charged with the preparation of false public documents and events related to test and evaluation, and the Minister of the Defense Acquisition Program Administration prepared a false test and evaluation result as “satisfy,” and tried Defendant 3 and the prosecutor ordered Defendant 1 to receive and receive the instant bill from the Prosecutor.

2. As to the Prosecutor’s grounds of appeal against Defendant 3 and Defendant 5

A. The summary of the facts charged in the instant case against Defendant 3 and Defendant 5 is as follows. They were indicted on the preparation of each false official document and the exercise of each false official document, and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation).

Defendant 3 is the head of the Defense Acquisition Program Administration who has overall control over the instant sound search project, and Defendant 5 is the head of the Defense Acquisition Program Administration’s vessel operation division. Defendant 3 and Defendant 5 conspired with Nonindicted Company 1 to obtain “conditional fulfillment” due to the lack of presentation of test and evaluation data in connection with whether the instant sound search device satisfies operational performance, etc. as a result of the evaluation of the proposal of this case proposed by Nonindicted Company 1, and failed to submit data even until the date of the test and evaluation. However, in stating “requirements and selective fulfillment” in the items of the final decision to be presented to the Working Committee for Business Management, it is necessary to make sure that the committee members are not able to accurately know whether the conditions were met or not, and to lawfully obtain the performance decision of the instant sound search machine by the time of evaluation so that the committee members are not able to obtain the performance evaluation of the instant sound search machine by the time of evaluation of its performance and to lawfully obtain the results of the request by the time of evaluation of its performance evaluation of the instant sound testing machine by the time of evaluation.

B. According to the reasoning of the lower judgment, the lower court upheld the first instance judgment that acquitted Defendant 3 and Defendant 5 of this part of the facts charged on the ground that it is difficult to view that the evidence presented by the prosecutor alone had a criminal intent to prepare a false official document, such as the facts charged, or that he committed an act of breach of trust with intent to cause damage to the Republic of Korea with the intent to cause damage to Nonindicted Company 1, was proven to the extent that there is no reasonable doubt.

C. In light of the following circumstances, the reasoning of the lower judgment and the evidence duly admitted, the lower court’s determination that Defendant 3 and Defendant 5’s criminal intent with respect to the preparation of false official documents and the crime of breach of trust was not proven to the extent that there is no reasonable doubt.

1) As one of the failure causes of the instant sound search project, it is suggested as a military performance for the ○○○○○○○ (△△△△△△△) company’s appearance of the existing old box, which was installed in the light, to be loaded in the opening of a new order, and it is pointed out that it is reflected in the proposal letter (draft) prepared by the Defense Acquisition Program Administration landing Project Team. However, there is no evidence to deem that Defendant 3, the head of the landing project team, or Defendant 5, the head of the naval project, intentionally intervene in the process of preparing military performance, thereby facilitating the participation of Nonindicted Company 1, who handles the sound search of the ○○○○ (△△△△△△△△△△△) company in the tender process or favorablely carrying out the relevant procedure.

Furthermore, examining the progress of the purchase project of weapons systems, such as mobile equipment, as seen earlier, it is difficult to view that Defendant 3 exercises a dominant influence over the whole project or could proceed with the procedure as intended by Defendant 3, under the procedural structure of the purchase project, on the grounds that the evaluation of proposals, which can be called as particularly important procedures in selecting the target equipment and determining the model, is conducted by a separate proposal evaluation team, which is not a landing project team, to which Defendant 3 belongs, but a separate proposal evaluation team, which is not a landing project team of the Defense Acquisition Program Administration to which Defendant 3 belongs, and the test and evaluation is conducted by the naval headquarters under the supervision of the branch state of the Defense Acquisition Program Administration, and the request for proposal and the final decision, etc. are organized and decided by the Committee, respectively, and it is difficult to view that Defendant 3 was able to exercise a dominant influence over the whole project or

2) In addition, even if Defendant 3 and Defendant 5 knew of the fact that the instant sound search device proposed as a ○○○○○ (△△△△△△△)’s product was not capable of properly displaying its performance or that Defendant 3 and Defendant 5 carried out the procedure unreasonably with any other intention even though they knew of the fact that the instant sound search device was a large number of equipment.

Inasmuch as the test and evaluation result of the Maritime Headquarters of the Korea Coast Guard at issue is deemed to satisfy all items, such as operational performance and military operation suitability, it is judged to be suitable for combat, Defendant 3 is highly likely to have accepted that there was no particular problem with the performance of the instant sound searcher, and barring any other special circumstance, deeming it as above accords with the empirical rule. In addition, if it is deemed that Defendant 3 knew, or could have known, the fact that the instant sound search machine was short of the performance and that there was a lot of equipment, there is insufficient evidence to see such fact even after examining the record.

3) After being selected as “equipment subject to testing, evaluation, and negotiation” through the evaluation of the proposal, the Defense Acquisition Program Administration’s project team appears to have failed to submit particular data from Nonindicted Company 1 until the test and evaluation is completed. However, during the test and evaluation process, Nonindicted Company 1 sent additional answers to the test and evaluation items, such as operational performance, on two occasions at the request of the Maritime Headquarters, and the test report on vibration, noise, EMI, and EMC among the military operational suitability items was assessed on the condition that prior to the test and evaluation, the test report on the test and evaluation plan prepared and confirmed by the Maritime Headquarters, the Maritime Affairs and the Defense Acquisition Program Administration had already been submitted “within the time of delivery after the final decision and the test and evaluation process.” Accordingly, Defendant 3 and Defendant 5, who were not directly involved in the test and evaluation of such conditions, shall trust the test and evaluation results of the Maritime Headquarters and shall not have any other special circumstances to suspend or have taken any other measures for the further review.

In particular, it should be revealed that Defendant 3 and Defendant 5 are aware of the fact that the process of test and evaluation conducted by the Maritime Affairs Headquarters in order to be recognized as a criminal intent and that the result was clearly erroneous and that continuing the process of test and evaluation conducted by the Maritime Affairs Headquarters was likely to cause damage to the Navy or the State. However, there is considerable lack of evidence to prove such circumstance.

4) Meanwhile, according to the Defense Acquisition Program Management Regulations (amended by the Directive No. 101 of Aug. 5, 2009), one of the matters to be included in the final decision(s) is stipulated as one of the matters to be included in the final decision(s) (Article 223(7)3). Article 223(7)3 of the Guidelines for the Purchase of Weapons Systems and for the Evaluation of Model Classification (amended by the Guidelines No. 2009-54 of Aug. 20, 2009), the aforementioned matters shall also be included in the final decision(s) (Article 18(2)3). The head of the integrated project management team shall prepare a final decision(s) on the basis of the results of test and evaluation, the results of negotiations, and the results of cost evaluation(s) (Article 18(1)).

However, the evaluation of proposals is the procedure for determining whether to select the equipment for which the proposal is submitted as “equipment subject to testing, evaluation, and negotiation,” and the term “equipment subject to testing, evaluation, and negotiation” in the above provision refers to the equipment selected as the object of testing, evaluation, and negotiation through the evaluation of these proposals. In addition, the above guidelines only require the final determination (the proposal) to be prepared based on the results of testing, evaluation, etc. As such, the phrase “requirements and selection requirements” in the above regulations and guidelines should be stated in the process of testing and evaluation. The contents assessed in the process of evaluation of the proposal prior to the evaluation are not significant factors to be considered only when the selection of the target equipment is already made.

As long as the results of the evaluation of the proposal are stated in the final decision (draft), it is difficult to readily conclude that Defendant 3 had any hidden intent, such as giving convenience to Nonindicted Company 1, who supplied the instant sound searcher, does not have any clear work guidelines or practices related to the method of recording the results of the evaluation of the proposal, and Defendant 3 appears to have prepared the final decision (draft) by referring to the existing precedents, with Nonindicted 7, in charge of preparing the final decision (draft). In light of the aforementioned circumstances, it is difficult to readily conclude that Defendant 3, as seen above, stated all the results of the evaluation of the proposal in the final decision (draft), stating that there was a conditional item meeting at the time of the evaluation of the proposal. Rather, as recognized by the original decision, it appears that there was no clear work guidelines or practices related to the method of recording the results of the evaluation of the proposal in the final decision (draft), and Defendant 3 appears to have prepared the final decision (draft) by referring to the existing precedents.

Furthermore, since the final decision(s) clearly revealed the purport that the detailed statement of the test and evaluation result was submitted not only before the delivery of the test report on some items, it cannot be deemed that the members of the Committee were not provided with information sufficient for the final decision(s).

5) The prosecutor asserts that, in the first instance court at the court of first instance, Defendant 3’s confessioned Defendant 3 of the preparation of a false official document and reversed it, the court below reversed the judgment on the credibility, etc. of confession. However, even if Defendant 3’s statement to the purport of confession was examined on the date of the sixth trial of the court of first instance, it is difficult to evaluate Defendant 3 as a confession because Defendant 3 made a reply to the purport that the entire facts charged were contested by making a detailed statement on the progress of the business of purchasing the instant sound searcher and the process of carrying out the business process, the preparation of the final decision, etc., and it is difficult to evaluate Defendant 3 as a confession. In addition, the prosecutor argues that the court below omitted the judgment as to whether Defendant 3 and Defendant 5 knew of the fact that Defendant 5 did not submit the materials proving the performance of the instant sound searcher by the time of the final decision. However, considering the reasoning of the judgment below, the court below also did not accept any other premise.

6) More than anything else, Defendant 3 and Defendant 5’s transfer of Nonindicted Company 6 or the search business of this case, which were the so-called “Nonindicted Company 1” by the Navy Chief of Staff at the time, did not reveal the circumstances that Defendant 2 received money, valuables, or entertainment from Defendant 3 and Defendant 5, the motive for the instant crime, namely, Defendant 5’s motive for the promotion, or Defendant 3, who was the motive of Nonindicted 5’s motive for the instant crime, did not appear to constitute the instant crime, or Defendant 3, the superior of the military deceptive order, was unable to make a false instruction, and it is difficult to view that the evidence presented by the prosecutor was sufficiently proven beyond a reasonable doubt. Examining the statements or statements of Defendants 3 and 2 and Nonindicted 8, etc. cited by the prosecutor, the Defense Acquisition Program Administration appears to have worked in the military prosecutor’s office to prevent the instant activities of Defendant 3 from entering into an active duty command and supervision and to have been engaged in the instant business within the scope of the year at the time of search and supervision.

7) As a result, Defendant 3 ought to be ultimately responsible as the head of the integrated business management team of the instant business management team as alleged by the prosecutor in relation to the delivery of the instant sound search equipment in short of performance, in view of the reasoning of the lower judgment and all the above circumstances known from the evidence duly admitted, the crime of false official document preparation and breach of trust by Defendant 3 and Defendant 5 cannot be deemed naturally derived from the point of view, apart from the fact that there is a lack of secrets in business performance by Defendant 3 and Defendant 5, etc.

8) In addition, the Agency for Defense Development and other specialized institutions have expressed the opinion that only as proposed by Nonindicted Company 1 in the proposal, would have no problem with satisfaction of the required performance or operational requirements. In the event that the instant sound search machine was supplied and sent, one year and six months have passed since the final decision, and if the Navy conducted operational test, evaluation, and trial operation evaluation, it is difficult to view that the instant sound search machine’s failure was more and more than a considerable period of time after the final decision, and that there was no reasonable doubt about the performance or performance of the Defendant’s duty being supplied to the extent that it failed to properly verify whether the instant sound search machine was equipped with the necessary performance in the process of test and evaluation, and that there was no reason to view that there was an intention to supply the instant product to the extent that it did not meet the initial performance or performance of the Defendant’s duty being supplied. In conclusion, it is difficult to view that the instant sound search machine was supplied to the extent that it did not meet the objective performance of the Defendant’s duty being supplied to the extent that it did not meet the initial performance.

D. Ultimately, the lower court was justifiable in maintaining the judgment of the first instance that acquitted Defendant 3 and Defendant 5 as it is. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence, or by exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal doctrine on the

3. As to Defendant 1’s ground of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted, it is justifiable for the lower court to have convicted Defendant 1 of all of the facts charged in the instant case, namely, the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) that received a bribe from Nonindicted 9, Nonindicted 6, and Nonindicted 10, and the alteration and exercise of official documents on June 1, 2010. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not exhaust all necessary deliberations, and did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on job relationship, consideration, and justifiable act

In addition, the argument that the lower court erred by misapprehending the legal principles on sentencing constitutes an allegation of unfair sentencing. However, according to Article 383 Subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is permitted only in cases where death penalty, life imprisonment, or imprisonment with or without labor for not less than ten years has been imposed. Therefore, in this case where Defendant 1 was sentenced to a more minor punishment, the argument that the sentence is too unreasonable is not a legitimate

4. As to the prosecutor's ground of appeal on Defendant 1

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, although the lower court’s reasoning on the alteration of official document was partially inappropriate, it is reasonable to maintain the first instance judgment which acquitted Defendant 1 on the ground that the lower court’s alteration and exercise of official document as of May 24, 2010 among the facts charged in the instant case against Defendant 1, based on the reasons indicated in its reasoning, constituted a case where there was no proof of crime. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on alteration of official document.

5. As to Defendant 2’s ground of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted, it is justifiable for the lower court to have convicted Defendant 2 of all of the facts charged in the instant case involving Defendant 2’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes and third party bribe acquisition. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by failing to exhaust all necessary deliberations, exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on

On the other hand, Defendant 2 appealed to the entire judgment of the court below, but there is no statement in the petition of appeal as to the violation of the Military Secret Protection Act, which is the remaining guilty part, and there is no statement in the statement of appeal as to the grounds of objection.

6. As to Defendant 4’s ground of appeal

According to the records, Defendant 4 appealed against the judgment of the court of first instance, and asserted only unfair sentencing on the grounds of appeal. In such a case, the argument that the lower court erred by misapprehending the legal principles as to a violation of the Military Secret Protection Act and by omitting judgment is not a legitimate ground of appeal.

In addition, according to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is permitted only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years is sentenced. Thus, in this case where Defendant 4 was sentenced to a minor sentence, the argument that the sentence is too unreasonable is not a legitimate ground for appeal.

7. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)