[1] Meaning of “an act detrimental to the fairness of a tender” in a bidding obstruction, and in a case where the representative of a legal entity, who is an implementer of a selective competitive tendering procedure, conspired with a specific person to notify the expected price so that the specific person may be selected as a successful bidder, and the specific person complies with the bidding in collusion with the remaining bidders, whether

[2] Whether only a tender executed pursuant to the legal obligation to conduct a tender becomes the object of the obstruction of tender (negative)

[3] In a case where a chief director and an employee of a school juristic person conspired with a specific business operator to notify in advance the expected price so that the specific business operator can be awarded a contract for construction work without fair competition, the case affirming the court below's decision that all the above persons are punished by interference with bidding

[1] The crime of interference with bidding does not require the actual appearance of the result as a dangerous crime that is established when the fairness of bidding is harmed by deceptive means, threat of force, or other means. Here, the “act of impairing the fairness of bidding” means the act of causing the situation where it might interfere with fair competition, i.e., causing the situation where the fair competition would be likely to be impeded. In other words, the act includes not only pricing but also damaging the proper and fair competition method, and the act of causing the situation where there would be unfair influence on the fair price formation through fair competition. The act of causing harm to the fairness of bidding conducted in reality, unlike the case where the representative of the corporation, which is the implementer of a selective competitive tendering procedure, is informed of the estimated price so that the specific person may be selected as the successful bidder in collusion with the other bidders, and the specific person is in collusion with the other

[2] Although a bidder has conducted a tender pursuant to the legal obligation to conduct a tender, it does not constitute an object of interference with the tender.

[3] In a case where a chief director and an employee of a school juristic person conspired with a specific business operator to notify in advance the expected price so that the specific business operator can be awarded a contract for construction works without fair competition, the case affirming the court below's decision that all the above persons are punished by interference with bidding

[1] Article 315 of the Criminal Act / [2] Article 315 of the Criminal Act / [3] Article 315 of the Criminal Act

[1] Supreme Court Decision 2000Do4700 decided Feb. 9, 2001 (Gong2001Sang, 684) Supreme Court Decision 2004Do2581 decided Dec. 22, 2006 (Gong2007Sang, 245)

Defendant 1 and three others

Defendants

Attorneys Im Chang-soo et al.

Daejeon District Court Decision 2006No946 Decided October 26, 2006

All appeals are dismissed.

The grounds of appeal (to the extent of supplement in case of supplemental appellate briefs not timely filed) are examined as follows.

The crime of interference with bidding is established when the fairness of bidding is harmed by a deceptive scheme, threat of force, or other means, and it does not require the actual appearance of the result. Here, the “act of impairing the fairness of bidding” refers to the act of causing a situation that is likely to interfere with fair competition, that is, causing an unfair influence on the adequate price formation through fair competition, that is, the act of causing not only price-fixing but also damaging the means of fair competition. The act of causing harm not only to the act of causing harm to the reasonable and fair competition. The act of causing harm to the representative of the juristic person, who is the implementer of a selective competitive tendering procedure, in collusion with a specific person, notifying the estimated price so that the specific person may be selected as the successful bidder, and the specific person, in case where the representative of the juristic person, who is the implementer of the selective competitive tendering procedure, complies with the remaining bidders, shall be deemed as detrimental to the fairness of bidding implemented in reality, unlike the case where the basis of bidding was fabricated without the others (see, e.g., Supreme Court Decisions 200Do470, Feb. 9, 206).

In addition, only a tender conducted by a bidder according to the legal obligation to implement a tender, it is not an object of the interference with the tender.

In the same purport, the court below is justified in finding the Defendants guilty of all of the acts that Defendant 4 and Defendant 3, the chief executive officer of the school juristic person, in collusion with the remaining Defendants by informing them in advance of the estimated price so that a certain enterprise may be awarded a successful bid without fair competition, and there is no error in the misapprehension of legal principles as to the requirements for interference with bidding as otherwise alleged in the ground of appeal.

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

Justices Ahn Dai-hee (Presiding Justice)