Do 2015 Do 18399 A. Violation of the Act on Punishment, etc. of Specific Economic Crimes (Fraud)

name of a crime partially recognized for Goin A and B: Fraud

(b) Attempted fraud;

(c) interference with the appearing of computers;

(d) interference with tenders;

(e) Dried trees;

(f) Acceptance of breach of trust;

(g) Fraud;

1. (a) b. (c) d. f. A;

2. (a) b. (c) d. B

3. b. (c) d. E. C

Defendant A, B, and Prosecutor (Objection to Defendant)

Attorney E, F, G, H, and I (for Defendant A), who is a legal entity (with limited liability)

Attorney J (Korean National Assembly for Defendant B)

Attorney K in charge of K (Attorney C)

Gwangju High Court Decision 20155369 decided November 12, 2015

2016, 5.27

Of the judgment of the original court, the guilty part against Defendant A and B shall be reversed, and this part of the case shall be remanded to the Gwangju High Court.

All appeals filed by a public prosecutor shall be dismissed.

The grounds of appeal (the statement of Defendant A’s grounds of appeal that was submitted after the lapse of the period for submitting a statement of grounds of appeal is within the scope that supplements the grounds of appeal) shall be determined.

1. As to the grounds of appeal by the defendant A and B

A. Fraud is established by deceiving another person to acquire property or profit from property by inducing such disposal (Article 347 (1) and (2) of the Criminal Act), and "influence of fraud" means causing mistake as to the facts that constitute the basis for determining the other party to the disposal, and "disposition" means the act of giving property or giving pecuniary benefits to the other party to the disposal of the victim to the public, or the other party to the public procurement of the public procurement of the contract (see Supreme Court Decisions 9Do484, Apr. 27, 2001; 2011Do48, Feb. 27, 2014; 2011Do48, Feb. 27, 2014; 2010Do3247, Feb. 27, 2014).

C. After recognizing the facts as indicated in the judgment below, the court below acknowledged the following: ① a series of acts by which the lower limit of successful tender price was distorted in the process of determining successful tender price or by setting the lowest limit of successful tender price in an unlawful manner constitutes deception against the victim; ② The bidder's person in charge of the tender knew that the specific bidder would not be excluded from the bidding process or would not be determined as the final successful bidder even though he did not know that the specific bidder would not have been determined as the final successful bidder's price, and thus, the specific price was determined as the final successful bidder, and accordingly, it is recognized that there was a series of acts of fraud, such as entering into a contract with the public corporation and payment of construction price, and thus, it is not an economic expectation between the defendant and the victim of the public corporation and the public corporation, and thus, it is not an economic expectation that the defendant would have obtained the specific amount of profit from the public corporation and the public corporation.

D. 1) Examining the reasoning of the judgment of the original court in light of the aforementioned legal principles, the part of the judgment of the court below that held that the crime of fraud or the attempted crime should be established on the grounds of the above (i.e., the grounds for the judgment of the court below) is justifiable, and there is no error in the misapprehension of legal principles as to the intention of fraud, deception, disposal, and the relation with a person, as alleged in the grounds for appeal.

2) However, it is difficult to agree with the reasoning that the part which judged the amount equivalent to the cost of the construction work that the victim has paid as the profit from fraud is the amount of profit of the specific economic crime law. (A) According to the records, the content of the deception is that the lower limit of the final successful bidder is the price determined in the procedure that is kept confidential, and that the bidder's voluntary bid price is the price determined without any unlawful act, and that it is the price determined by the bidder's successful bidder's successful bidder's selection as the successful bidder's successful bidder and conclusion the contract with the victim's faithful performance of the construction work, and that it is reasonable for the victim to be aware of the intent and ability of the successful bidder to perform the construction work and that it is reasonable for the victim to be aware of the facts that the contract would be executed with the victim's intent and capacity to perform the construction work, and that it would be possible for the victim to enter into the contract with each other by means of deception and other relevant construction work.

Nevertheless, the judgment of the court below, on the premise that the above defendant's act of disposal by deception such as the above defendant's indictment is an act of disposal by deception, is an act of the above defendant's act of public action, has been considered as fraud fraud fraud fraud fraud fraud, and the amount of profit under a specific economic crime law. Such judgment of the court below is erroneous in the misapprehension of the legal principles as to fraud fraud fraud fraud or the calculation of the amount of profit under a specific economic crime law, which affected the judgment. The ground of appeal pointed out this error is with merit.

2. As to the grounds of appeal by a public prosecutor

A. The lower court determined that ① the structure of each of the instant frauds, the circumstances leading up to the Defendant’s receipt of money from the public project operator; ② the Defendant’s prior payment of money corresponding to a certain percentage of the successful bid amount in accordance with the type of the construction project to provide the public project operator with the information on successful tender; and the Defendant’s receipt of money from the public project operator immediately after the offer of the information on successful tender or immediately after the receipt of the successful tender payment; ③ the amount of money to be received from the Defendant A’s public project operator was determined; ④ the time when the public project operator received money from the victim; ④ the time when the Defendant received money from the public project operator; ⑤ the intention of the public project operator and the public project operator to receive money from the public project operator; ⑤ the intention of the public project operator to receive money from the public project operator or to obtain money from the public project operator after the purchase of the money from the public project operator, and the reason why the public project operator received, or attempted to obtain, the money from each of the Defendant’s ex post facto embezzlement or distribution;

B. Examining the reasoning of the judgment of the court below in light of the relevant legal principles and evidence duly adopted, it is inappropriate for the court below to determine whether the crime of taking property in breach of trust by the defendant was established on the premise that the defendant acquired the victim's property profit, not the property profit of the contracting party, but the construction cost, as seen earlier. However, the court below determined that the money that the defendant received or attempted to receive was merely the distribution of profits among the accomplices of the fraud and that the crime of taking property in breach of trust and taking property in violation of trust did not constitute the crime of taking property in violation of trust, separately from the defendant, is justifiable, and there is no error of misapprehending the legal principles on the establishment of the crime of taking property in breach of trust as alleged in the grounds of appeal, thereby affecting the conclusion of the judgment.

3. Scope of reversal

As seen earlier, among the judgment of the original court, each of the specific economic crimes committed against Defendant A and B and the part on fraud should be reversed. As such, the judgment of the first instance, which maintained this part of the original judgment and the remaining crimes, is deemed to have a concurrent crime or an ordinary concurrent relation under the former part of Article 37 of the Criminal Act, and rendered a single sentence. As such, among the judgment of the original court, the part on conviction against the above Defendants in the original judgment should be reversed in its entirety. Meanwhile, as long as the main sentence against the above Defendants is reversed, the part on confiscation and additional collection, which are an additional punishment, shall also be reversed.

4. Conclusion

Therefore, without examining the remaining grounds of appeal by Defendant A and B, each part of the judgment of the original court guilty against the above Defendants A is reversed, and this part of the case is remanded to the court of the original court for further proceedings consistent with this Opinion, and all appeals by the Prosecutor are dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kwon Soon-il

[Attachment-dae]

Justices Park Poe-young

Justices Kim Shin-chul