2016 Highest 2085 Fraudulent, Bidding

A person shall be appointed.

Kim Jong-gu (Court Prosecution) and Kim Jong-tae (Court Decision)

Law Firm B, Attorney C

September 8, 2016

A defendant shall be punished by imprisonment for one year.

Criminal facts

(a) Interference with bidding;

The defendant is a person who actually operates the above company as a representative director of (ju) D or E who is a food ingredients supply, food manufacturing, and distribution company (ju).

In response to the "Food and Fishery Products Exchange" electronic food ingredients supply electronic tendering system (ETA), which is operated and managed by the Korea Agriculture and Fisheries Corporation, the defendant should not lend the name of the other company or make duplicate bidding for the same public notice in the same area. However, the defendant prepared ten food materials supply companies such as O, P, Q, (State), S, T, U,V, P, P, etc. in the name of the defendant, in addition to the above two food materials supply companies directly operated by the defendant, after establishing a disguised company under the name of relative and employee for the purpose of raising the successful bid rate due to an increase in the number of enterprises participating in the electronic tendering procedure.

On October 17, 2014, the Defendant received a successful bid in KRW 27,925,00 in the name of 0,000 in the name of E and 0 when participating in an electronic bid in November (i.e., agriculture, industrial products, kimchi, and fishery products) of Z elementary school (hereinafter referred to as “public announcement of submission of estimates for small amount of money) ordered and managed by the above construction work.”

In addition, from around that time to October 23, 2015, the Defendant followed the fairness of the "Electronic Procurement System for School Meal Services", which is managed by the said construction, by winning a contract equivalent to KRW 6,612,559, and 669 for the supply of school meal services in the same electronic bid in the name of the same company managed and operated by the Defendant through the same method as shown in the attached list of crimes (1) from around 262 times.

(b) In order to pass the examination of documents to respond to electronic tendering for the supply of food materials (TA), the health examination report for personnel handling food materials, including the representatives of school meal service suppliers, in order to operate and manage the Korea Agriculture and Food Trade Corporation and the Korea Agriculture and Food Trade Corporation (Gu health certificate).

shall submit such documents.

Nevertheless, on July 9, 2015, the Defendant submitted to the employee in charge of the 'Food Supply Electronic Procurement System (EA)' (EA) food ingredients supply electronic bidding contract with the victim AB middle schools and received KRW 38,542,900,90 as the price of goods after having entered into an electronic bidding contract with the victim AB middle schools and September 2015, when he/she supplied the food service materials for the school meal service under the name of the Defendant, on behalf of the Defendant, as if he/she was the Defendant’s employee, and was issued a health certificate as a result of the health examination on August 13, 2015.

In addition, from around that time to October 22, 2015, the Defendant concluded a school meal contract three times by the aforementioned method, as shown in the attached list of crimes (2) from around that time, and obtained a total of KRW 108,694,90 as the price for supply, and acquired it by fraud.

Summary of Evidence

1. Defendant's legal statement;

1. Each protocol concerning the examination of police officers against J, K, L, G, H, I, N, and F;

1. Statement of each police statement made to A;

1. A report on internal investigation (attaching the current status of overlapping speculations);

1. Report on internal investigation (AC and confirmation of latest bid information);

1. Bidding, details of successful bid, and copies of documents related to D;

1. Investigation report (Attachment of Documents related to school meal service contracts submitted to AD high schools);

Application of Statutes

1. Article applicable to criminal facts;

Articles 347(1) and 315 of the Criminal Act; Selection of imprisonment

1. Aggravation for concurrent crimes;

Judgment on the defense counsel's assertion under the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (with respect to fraud)

1. The assertion;

In order to establish fraud, the defrauded and the dispositive act of property and the defrauded agree with each other. In this case, first of all, there is no loss in that the supply of food materials was actually conducted, and furthermore, each relevant school, which is a dispositive act of price of supply, cannot be the dispositive act of price of supply, cannot be the dispositive act, so

2. Determination

A. As in the instant case, it is reasonable to see each of the schools as a dispositive act simultaneously as the defrauded in light of the bid and bid method in the Food Service Electronic Procurement System (ETA), the subject of contract conclusion, etc., and thus, this part of the allegation is without merit.

B. Fraud is a crime established by deceiving another person and acquiring property or pecuniary benefits based on his/her defective intent. The essence of fraud is the acquisition of property or pecuniary benefits by deception, and does not require that the other party actually suffers property damage (see Supreme Court Decision 82Do3139, Feb. 22, 1983). Therefore, if the other party is mistaken by deception and receiving property delivery, and the other party is taken by deception, it would not affect the establishment of fraud even if it did not cause property damage to the other party by providing reasonable consideration to the value of the property (see Supreme Court Decision 85Do490, Feb. 22, 1983). This part of the assertion is without merit.

The reasons for sentencing are favorable sentencing factors such as the defendant's acknowledgement of his mistake, the fact that the crime like this case is committed in the same industry as the practice, the fact that the defendant's profit acquired by each crime of this case is not very large, and the fact that there is no same power.

However, each of the crimes of this case is a so-called food material, which is supplied to students as a meal service, and among them, the case is very serious. Furthermore, the Defendant appears to have been aware of the importance of the food material, as a person who has engaged in the food material supply business for about 22 years. Nevertheless, the Defendant prepared ten food materials suppliers to bid 60 times or more per month on the Food Service Electronic Procurement System for about 10 food materials and has awarded a bid of approximately KRW 6.6 billion in total over 262 times per month, and there is a need for strict diversification in light of the applicable criminal law, sustainable period, size, etc. In addition, each of the crimes of this case is likely to seriously undermine the trust of the relevant persons, such as parents related to the safety of the school meal itself, as well as to undermine fair competition. Furthermore, the Defendant’s repeated action against the act of this case is highly likely to be repeated in light of the aforementioned reasons.

Judges Gyeong-sik