2016Do15523 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

1. A;

2. B

Defendants

Law Firm JI (For the Defendant)

JN, JK, JL

Seoul High Court Decision 2016No112 Decided September 8, 2016

January 12, 2017

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. Judgment on the third ground for appeal

The argument in the grounds of appeal is that the defendants test the reliability and durability of M (hereinafter referred to as "M")'s test products.

Although there was no replacement of a prototype in the process of the test, the noise from the inside of the test that the court below was conducting the test.

B. As the accident occurred, the Defendants had replaced the test products to M 2 M, and proceeded with the test.

C. The judgment of the court below was erroneous in finding the facts.

However, the recognition of facts, the selection and evaluation of evidence shall not exceed the limit of the free evaluation of evidence.

Defendant, even after examining the reasoning of the lower judgment in light of the record, falls under the exclusive authority of the lower court.

The freedom of fact finding by the court below that the person had replaced M&M to M 2 during the above examination

No person shall be deemed to have exceeded the limit of the principle of stimulism.

2. Determination on grounds of appeal Nos. 1 and 2

A. Fraud is established by deceiving a person to receive property or acquiring pecuniary benefits;

(Article 347 of the Criminal Act), deception, which is a requirement for fraud, shall comply with each other in wide range in property transactional relationships.

the duty of good faith and good faith refers to any affirmative or passive act that lacks good faith and good faith;

It is not necessarily necessary to establish an essential part of a juristic act (see, e.g., Supreme Court Decision 9 April 9, 2004).

Supreme Court Decisions 2003Do7828, Supreme Court Decision 2015Do11200 Decided October 13, 2016, etc.; and

There is a causal relationship between such deception, mistake, and property disposal act (Supreme Court Decision 6. 2000.6).

27. See, e.g., Supreme Court Decision 2000Do1155.

On the other hand, there is a delivery of money due to deception in fraud, the purpose of which is deception of money.

In itself, a crime of fraud is established as an infringement of the victim's property, and a reasonable price is paid.

The establishment of a crime of fraud even if the victim did not have any damage to the entire property of the victim;

Therefore, even in the case of partial payment of the price in fraud, the amount obtained by deceit shall be the victim.

It is not the difference between the money given as the basis and the money given as the basis for the deduction of the consideration (Supreme Court).

See Supreme Court Decision 2006Do7470 Decided January 25, 2007, etc.

B. The court below held that the defendants' test products during the test and evaluation of the credibility and durability of M's test products.

Based on the above facts that the replacement was made, L Co., Ltd. (hereinafter referred to as “L”)’s employees

(1) If the Defendants conspired to act in collusion with the Defendants to replace a trial product, it may be deemed that the Defendants

After completion of performance testing, the Defense Acquisition Program Administration by deceiving the staff in charge of the Defense Acquisition Program Administration M

Aggravated punishment for a specific Economic Crimes that grants 23,002,674,810 won as the price in 54

The judgment of the court of first instance which found guilty of violation of the law (Fraud) was affirmed.

C. The reasoning of the lower judgment and the evidence duly admitted by the first instance court are as follows.

information may be known.

(1) According to the supply contract entered into between L and the Defense Acquisition Program Administration, M goods are determined by the Agency for Defense Technology and Quality Assurance.

(1) The Agency for Defense Technology and Technology Development, which produces one product, shall be supervised and inspected in accordance with the provisions of the Act.

After the performance test, a follow-up production is commenced, and the performance test is a national defense quality control in the performance test.

The inspection result that has passed the self-inspection result prescribed in Article 18 of the Business Regulations shall be submitted;

(c)

(2) L is from the Korea SPS corporation, the certification agency designated by the Agency for Defense Technology and Quality Assurance.

Reliability and durability test was conducted. The test is 1,000 under the waiting condition of the standard piracy.

The test is to verify and evaluate the durability, etc. by operating a prototype during the time. During the test, the test is during the process.

shall continue to operate M&M products except when such products are intended to be maintained, repaired, or provided for;

of the corporation.

(3) According to the internal component test procedure document applicable to the above examination, an Oral item is another item.

(2) in the process of manufacture or assembly; or (3) in the course of

If it is necessary to escape, adjust or repair, he/she shall be deemed to have failed to pass the examination and shall be disposed of.

(c) The staff in charge of the Korea SPS shall be the time limit attached to M pilot products before commencing the test.

The measure was taken to seal the Hourter, etc.

(4) However, around May 9, 2013, around 07:00, about 400 hours after commencement of the above examination.

25. At around 11:00, there was an accident in which noise was emitted inside a prototype, and the Defendants kept the site L.

Test products being tested under instructions from employees Y, etc. are separated from electric power analysis technicians, etc. and taken outside the test site.

was moved to the examination place, and the M 2 of the completion stage of the assembly shall be moved to the examination place and shall not damage the seal.

The replacement, connection was made in an unreplacement manner.

(5) The Defendants completed a new test of reliability and durability with M and completed a replacement test and Korea SPS Co., Ltd.

The test report was issued and submitted to the Agency for Defense Technology and Quality and Technology, L, based on which L,

After passing the inspection, M 54 was supplied from October 15, 2013 to December 30, 2013.

D. According to the terms of the instant M delivery contract, the methods and procedures for conducting reliability and durability tests, etc.:

The act of replacing a prototype during the examination constitutes a ground for failure to pass the examination, and thus, constitutes a ground for challenge.

L could not pass a performance test if the certification agency knew of the replacement of the M Product.

and thereafter, M has not been supplied or paid. This circumstance was earlier.

In light of the legal principles, the defendants passed the performance test by deceiving the fact that the defendants replaced the test products.

(2) The act of submitting the result is based on the facts that constitute the premise for payment of the price.

The Defendants are considered to fall under the deception of fraud. The Defense Acquisition Program Administration in the "Defense Acquisition Program Administration".

Even if the replacement was known, the Defendants’ act constitutes a deception.

Although it is argued that there is no causation between the payment of the victim and the payment of the victim, it is difficult to accept it.

C. Therefore, the above judgment of the court below is erroneous in the misapprehension of legal principles as to deception, etc.

There was no misunderstanding error.

Furthermore, based on the results of the above performance testing by the Defendants, M by deceiving the Defense Acquisition Program Administration

as long as the payment has been received, a crime of fraud concerning the payment is established in its own, and LA provided.

Whether the supply contract of this case satisfies the quality or performance standard is established in fraud.

Based on this premise, the money which the court below delivered as the price of goods is the amount of profit.

In so determining, the legal principles on the amount of profit under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes are erroneous.

There was no error in prejudice.

E. However, the court below did not pay the price for the goods before the payment of the price for the goods including the advance payment.

We affirm the part of the judgment that there is a causal relationship with the Defendants’ above fraudulent act.

It is difficult to do so.

According to the reasoning of the judgment of the court below, Lina Defense Acquisition Program Administration receives the total amount of M price 23,002,674,810

on May 9, 2013, including money received prior to L’s commencement of test and evaluation of prototypes;

L. In other words, L. under the supply contract of this case, the Defense Acquisition Program Administration shall make a deposit under the name of the deposit.

6.6.7,968,00,000 won in advance, and the aggregate of KRW 9,868,00,000 in March 15, 2013;

was paid. The Defendants’ act of granting the advance payment and the subsequent deception

It is difficult to see that there is causation.

Therefore, for the above advance payment of KRW 9,868,00,000, the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

In the judgment of the court below that recognized the establishment of a violation (Fraud), the fraudulent act of the defendant and the money of the victim

In so determining, the lower court erred by misapprehending the legal doctrine on causation between the level of wages, thereby affecting the conclusion of the judgment.

D. The Defendants’ ground of appeal assigning this error is with merit.

3. Conclusion

Of the judgment of the court below, the above advance payment is against the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

Sector must be reversed, and the lower court recognized the remainder of the guilty charges as an inclusive.

B. The judgment of the court below is entirely reversed, and the case is to be tried and judged again, since the sentence was sentenced.

The case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Young-young

Justices Park Byung-hee

Justices Kim Jong-il

Justices Kim Jae-sik in charge