(b) Attempted fraud;

(c) interference with the appearing of computers;

(d) interference with tenders;

(e) Property in breach of trust;

(f) The number of copies of breach of trust;

Attorney C, D, E, F, G

The appeal by a public prosecutor shall be dismissed.

A. Fraud is established by deceiving another person Eul to make an error, causing the act of disposal, thereby receiving property or making profits from property (Article 347(1) and (2) of the Criminal Act). The term "inviation of fraud" refers to causing mistake as to the facts that are the basis for the judgment of the other party to make a disposition, and the term "disposition" refers to the act of giving property to the deceiving actor, etc. or giving property profit (see Supreme Court Decisions 99Do484, Apr. 27, 2001; 2015Do13024, Jan. 28, 2016, etc.).

B. Of the facts charged in the instant case, the summary of the violation of the Act on the Punishment, etc. of Specific Economic Crimes (hereinafter “Special Act on Economic Crimes”) and the part concerning fraud and attempted fraud among the facts charged in the instant case is that the Defendant, etc. directly uses the bid amount, or notify it to I et al., which was available for a successful tender made by this illegal means in collusion with the Defendant H, etc., or let the victim, who is aware of such circumstances, select as the successful bidder of the construction project, the victim et al. (hereinafter “Defendant et al.”) by obtaining money from the victim for the construction project, and then obtain it from the victim, or failed to receive it.

C. According to the reasoning of the judgment of the first instance and the judgment of the first instance, and evidence duly adopted, the contents of the act of deceiving the above indictment part of the crime are as follows: (a) in the tendering procedure for various construction works conducted by the Korea Electric Power Corporation by the electronic procurement system, including H, the final estimated price of the construction that serves as the basis for the selection of the successful bidder; and (b) actively input and manipulates the final lowest bid price of the construction that served as the basis for the selection of the successful bidder, such as H, in relation to the foregoing system, into the foregoing system, and subsequently, the Korean Electric Power Corporation, who is unaware of such fact, believed that the procedure would proceed with the examination of the status of the successful bidder and the selection procedure by deeming that the final lowest bid price is a fair price determined by the normal procedure without any unlawful act; and (c) it is concluded not only to believe that the final lowest bid price is an arbitrary price selected by the bidder without any unlawful act, but also to demand the successful bidder to be aware of the performance of the contract or performance of the contract.

Examining these facts in light of the legal principles as seen earlier, the act of disposing of the Korea Electric Power Corporation due to the act of deception by the Defendant, etc. is not a payment of construction cost, but a successful bidder is determined by the Defendant, etc., who received the lowest limit of the successful bidder from H, etc. to enter into a construction contract with the Defendant, etc., and it is reasonable to deem that such act of deception by the Defendant, etc. as a result of such disposal would be “the status of the party to the contract who entered into a construction contract with the ordering agency” as an unproperty profit (see Supreme Court Decision 2015Do13024, Jan. 28, 2016, etc.).

D. Nevertheless, the lower court erred by misapprehending that “payment of construction cost” was an act of disposal due to the said deception by the Defendant, etc., and maintained the first deliberation judgment on the premise that the amount equivalent to the construction cost was obtained by deception of fraud and the amount equivalent to the construction cost was the amount of profit under the Special Economic Crimes Act.

Therefore, the judgment of the court below is erroneous in the judgment of the court below that affected the conclusion of the judgment by misunderstanding the legal principles on the act of fraud, fraud, the amount of fraud, or the calculation of the amount of profit under the Special Economic Crimes Act, and failing to exhaust all necessary deliberations. The grounds of appeal for the purport of pointing this out are with merit.

2. Judgment on the grounds of appeal by the prosecutor.

If an act of cutting off and receiving money received as a result of a joint principal act, such as a crime of fraud, is not only a internal act of distributing money or property profit, etc. among the joint principal offenders, the act of giving and receiving the money shall not be deemed to constitute a crime of re-complosion of breach of trust (see, e.g., Supreme Court Decisions 84Do2599, Aug. 20, 1985; 2013Do7201, Oct. 10, 2013).

In full view of the circumstances in the first instance court’s holding on the structure of the above fraud crime, the background leading up to Defendant H et al.’s giving money to Defendant H et al., the proportion of the money received by Defendant 2, the person who determined the amount of the said money, the time when the public business operator received the payment from the Korea Electric Power Corporation, and the time when the public business operator received the payment from H et al., and the Defendant’s public business operator’s intent, etc., as well as the circumstances in the first instance’s holding on the time interval between H et al. and the Defendant and the public business operator’s intent, etc., the Defendant did not err in the misapprehension of the legal principles on the charges of offering money to H et al., and the Defendant and the public business operator.

Examining the circumstances acknowledged by the first instance court and the lower court in light of the above legal doctrine, Defendant et al., and Defendant et al., were offered in advance to distribute a certain amount of profit if the company that Defendant et al. operated as a successful bidder was selected as a successful bidder, and the company that was selected as a successful bidder according to the content of the public offering was to deliver or deliver money to Defendant et al. As a result, the money given by Defendant et al. and other public business entities, including the Defendant et al., such as the Defendant et al., was acquired as a joint criminal act, or to be acquired in the near future, and some of the property profits derived therefrom were distributed inside the status of the parties to the contract, and if some of the successful bidders did not reach the conclusion of the contract after the payment was made, it cannot be deemed otherwise.

Therefore, although some of the judgment of the court below is not appropriate, the conclusion of the court below which judged that the crime of giving property in breach of trust or the crime of giving property in breach of trust is not established, can be seen as the same purport, and thus, it cannot be said that there was an error of misapprehending the legal principles as to the crime of giving property in breach of trust or the crime of giving property in breach of trust, such as the assertion of the grounds for appeal, thereby affecting the conclusion of the judgment.

3. Of the judgment of the original court, the part of the judgment of the lower court guilty should be reversed in its entirety, on the violation of the Act on Specific Economic Crimes (Fraud), fraud, and attempted fraud. Since the lower court rendered one sentence on this part and the remaining guilty part, the part of the judgment of the lower court’s conviction among the judgment of the lower court should be reversed.

4. Therefore, without examining the remaining grounds of appeal by the defendant, the part of the judgment of the original court guilty shall be reversed, and this part of the case shall be remanded to the court of the original court in order to re-examine and determine the same, and the prosecutor's appeal shall be dismissed. It is so decided as per Disposition with the assent of all participating Justices.

Justices Lee In-bok

Justices Kim Yong-deok

Justices Kim So-young