Defendant

Defendant and Prosecutor

Hanbather, Jind, Kim Jong-Un (Public trial)

Attorneys Park Jeong-hee et al.

Gwangju District Court Decision 2015Gohap30, 150 (Consolidated) Decided July 6, 2015

All appeals by the defendant and the prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

The punishment sentenced by the court below (three years of imprisonment) is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts and misapprehension of legal principles - Giving evidence of breach of trust

① The Defendant did not distribute the profits acquired through deception to Nonindicted 1, but paid the money as the price for a bid manipulation. ② The amount of the money paid by the Defendant is not set in proportion to the construction cost; ③ In the case of giving property in breach of trust, there are many cases of determining and demanding the amount of money to be received by the recipient; ④ Nonindicted 1, 2, and 3 (hereinafter “Nonindicted 1, etc.”) in relation to the tender for the construction project, while managing and maintaining the bid system, and managing and repairing the bid system, there is a clear solicitation as the Defendant committed a bid at a specific construction business operator’s request at each bid manipulation; ⑤ Nonindicted 1, etc. received the money primarily prior to the conclusion of the contract or the first payment of the construction cost; but Nonindicted 1, etc. was awarded the first order by the construction business operator but did not reach the conclusion of the contract with the construction business operator, and thus, the Defendant’s delivery of money to Nonindicted 1 constitutes a capital in breach of trust.

Nevertheless, the lower court acquitted the Defendant of this part of the facts charged on the ground that the Defendant’s delivery of money to Nonindicted 1 was not only an internal act of distributing the proceeds derived from the crime of fraud among the co-principals, but also an act of distributing the proceeds ex post facto. Therefore, the lower court erred by misapprehending the legal doctrine

2) The assertion of unreasonable sentencing

The sentence sentenced by the court below is too uneasible and unfair.

2. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

A. Summary of the facts charged

Around April 2013, the Defendant received a proposal from Nonindicted 5 to the effect that “A person who works on the side related to ○○ and ○○ may be awarded a successful bid for construction that he/she wants to accurately identify the successful bid amount if he/she intends to do so. When he/she is awarded a successful bid, approximately 10% of the construction amount will change.”

On April 18, 2013, the Defendant made an illegal solicitation to Nonindicted 5, who is in the relation of Nonindicted 1, 2, and Nonindicted 3, the former and present ○○ bidding system managers, in relation to the foregoing construction, in the course of examining the “Seongcheoncheon Construction Co., Ltd.”, and Nonindicted 5, who delivered the above solicitation to Nonindicted 1, was awarded the said construction in the same manner as the criminal facts stated in the judgment of the court below, and then delivered KRW 93 million from the Defendant to Nonindicted 1.

In addition, from around that time to June 2014, the Defendant provided Nonindicted 5 and Nonindicted 1 with KRW 547,60,000 for the commission of crime, as indicated in the table of crime list Nos. 1, 2, 4, 5, 7-9 attached to the judgment of the court below.

Accordingly, in collusion with Nonindicted 5, the Defendant made an illegal solicitation contrary to his duties against the ○○ tender system manager who administers another’s business, and provided money and valuables in return therefor.

B. The judgment of the court below

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the lower court, the lower court determined that the Defendant was involved in Nonindicted 1, etc., which was continued from around 2005, and paid Nonindicted 1 the profits accrued from such fraud to Nonindicted 5 via Nonindicted 5, and that it was not merely an internal ex post facto distribution of the money acquired by such crime between Nonindicted 1, etc., who was a co-principal of the crime of fraud as indicated in the lower judgment, and the Defendant, who was directly awarded a successful bidder, as a co-principal of the crime of fraud.

【Status recognized by the Original Court】

1) The structure of each of the instant fraud crimes and the circumstances in which the Defendant provided money

① Around August 2005, Nonindicted 1 and Nonindicted 5 proposed that Nonindicted 1 and Nonindicted 5 participate in the crime by reding Nonindicted 1’s construction business operator who wishes to purchase high-priced bid information from Nonindicted 5, and that he would calculate and manipulate the successful bid price of the tender work site that the construction business operator wants, notify Nonindicted 1 of the bid price, and receive money from the construction business operator who fraudulently acquired the construction price from ○○○○○. Accordingly, Nonindicted 1 and Nonindicted 5 conspired to commit a crime against ○○. ② Nonindicted 5 proposed that Nonindicted 1 participate in the crime by deceiving the construction business operator who wants to obtain the bid price information from Nonindicted 5, by deceiving Nonindicted 1 and by inducing Nonindicted 1 to participate in the construction business operator’s bid price, and by inducing Nonindicted 1 and Nonindicted 3 to participate in the crime, the remainder of Nonindicted 1’s bid price, by introducing Nonindicted 3’s bid price from Nonindicted 1 and Nonindicted 4, and by inducing Nonindicted 6 Nonindicted 1 to participate in the construction business in order.

2) The ratio of the money received by Nonindicted 1, etc.

① In the case of a unit price construction project to Nonindicted 5 in return for providing the winning information to the construction business operator, Nonindicted 1 demanded money of KRW 150 million in high pressure, KRW 50 million in low pressure, KRW 2005 in the case of the construction project, KRW 1% in total in around 2006, KRW 3% in the contract amount of the construction project in around 207-201, approximately 5% in the contract amount in 2012-201, and KRW 5% in the contract amount of the construction project in around 2012-2014. Nonindicted 5, other than Nonindicted 5, demanded money of a certain percentage ($ 5-7%) based on the bid amount of the construction project to be acquired by Nonindicted 6, etc. to other intermediaries, including Nonindicted 6, etc.

(iii) determine the amount of money received;

As above, a joint principal offender, Nonindicted 1, etc., an electronic computer operator, and a broker of Nonindicted 5, etc., and a constructor of the Defendant, etc., who received bid information, determined the internal distribution ratio among the constructors of the Defendant, etc., are not Nonindicted 1, but rather Nonindicted 5, etc., the broker or Defendant, etc., and the victim of the crime of giving property in breach of trust, acting as above, is extremely exceptional (it is common in the form of giving property to a victim of property in advance and determining the scope thereof).

4) Time interval between the time when Defendant et al. construction business operators received the construction cost from Defendant et al. construction business operators and Nonindicted 1 et al. received the money from Defendant et al. construction

① After offering bid information, Nonindicted 1 received money agreed upon by the broker, etc. of Nonindicted 5, etc. or the construction business operator through the broker, etc., or the Defendant, etc., to receive the said percentage of money from the construction business operator immediately after receiving the contract for the construction work. As long as ○○○ was tendered for the construction work, it is guaranteed that ○○ is paid the construction work cost. As such, the money that Nonindicted 5, etc. and the construction business operator paid to Nonindicted 1 by the broker, etc. and the Defendant, etc., may be deemed to have been paid in advance as part of the construction cost, which is profits from the crime of fraud. ② Accordingly, even if the broker or the construction business operator received the construction cost from ○○ before receiving the construction cost from ○○, it shall not be deemed that the money was paid in advance to Nonindicted 1, or even if Nonindicted 1 received the money agreed upon from the broker

5) The intent of Nonindicted Party 1 and the broker, Defendant, etc. and construction business operators

① It appears that Nonindicted 1 was, rather than having received the price for illegal solicitation from construction business operators, there was an intention that Nonindicted 2, Nonindicted 3, and Nonindicted 4, an intermediary and Defendant, etc. will have engaged in the fraudulent crime against ○○ through brokers such as Nonindicted 5, etc. in order to acquire the construction cost from ○○○ through fraud. According to the public offering, Nonindicted 2, Nonindicted 3, and Nonindicted 4, the intermediary and Defendant, etc. will have attempted to perform functional roles such as manipulation of the successful bid price by electronic means, provision of information, and participation in the bidding based on the successful bid price, thereby deceiving ○○○ and receive part of the construction cost as a profit. ② It appears that Nonindicted 5, etc. or Defendant, etc. construction business operators, such as Nonindicted 5, etc., intended to receive part of the construction cost in advance by agreement instead of recognizing that they would receive the price for illegal solicitation from ○○.

6) Whether to accept an illegal solicitation

In the crime of accepting property in breach of trust, illegal solicitation means a solicitation contrary to the social norms and the principle of good faith, and in determining whether it is an illegal solicitation, a comprehensive consideration should be given to the contents of the solicitation and the amount, form, and integrity of the business administrator, which is the legal interest protected by the law, etc. (see Supreme Court Decision 9Do2165, Apr. 9, 2002). As above, it is difficult to deem that Nonindicted 1, etc., a computerized operator, conspired to commit a crime of fraud with Nonindicted 5, etc., the broker, Defendant, etc., in a successive manner, and that the Defendant, who is the broker or the business operator, of Nonindicted 5, etc., by reporting the act of deceiving ○ by an illegal method, was an illegal solicitation with respect to the duties of Nonindicted 1

C. The judgment of this Court

1) Relevant legal principles

The crime of taking property or property in breach of trust under Article 357 (1) of the Criminal Act is established when a person who administers another person's business obtains property or property benefits in exchange for an illegal solicitation in connection with his/her duties. In principle, a person who does not have such status can be the subject of the crime. The "person who administers another's business" as the subject of the crime of taking property in breach of trust refers to a person who is acknowledged to have a fiduciary relationship to handle the business in light of the principle of trust and good faith in relation with another person. It does not necessarily require that a person has a fiduciary relationship to handle the business in relation to another person. In addition, it does not require that the business be a comprehensive entrusted business. In addition, the grounds for taking property in breach of trust, namely, the grounds for taking property in relation to another person's business, may arise through statutory provisions, legal acts, customs, or administrative management, or that a person who administers another person's business refers to the entrusted business, or this includes not only the principal relationship with another person's business but also the person who directly or indirectly administers the business within 30.

Meanwhile, the act of giving and receiving the amount obtained from a joint fraud or a crime of breach of trust is nothing more than an act of internal distribution of the amount acquired from the crime among the co-principals after the crime (see, e.g., Supreme Court Decisions 84Do2599, Aug. 20, 1985; 94Do3346, Feb. 25, 1997; 2013Do7201, Oct. 24, 2013).

2) Determination

A) In light of the above circumstances and the following circumstances acknowledged by the evidence duly adopted and examined by the lower court, it is reasonable to view that the Defendant’s delivery of money to Nonindicted 1 through Nonindicted 5 was merely an internal ex post facto distribution of the money acquired by the crime among the accomplices in the fraud crime.

① Non-Indicted 1, etc. is not a conspiracy to commit the crime of embezzlement but a conspiracy to commit the crime of embezzlement. In other words, Non-Indicted 1, etc., upon planning their frauds, proposed the same construction business operator as the Defendant and the same construction business operator as the co-offenders through the Bracker, such as Non-Indicted 5. If the construction business operator consented to the participation in the crime of fraud, Non-Indicted 1 and Non-Indicted 5, etc. notified the Defendant and the construction business operator of the successful bid information subject to the payment of money equivalent to a certain percentage of the successful bid price. For the same reason, it is more accurate to view that Non-Indicted 1, etc. have an intention to receive money from others upon receiving illegal solicitation as to their duties, not to deem that they had an intention to receive money from others.

② Although Nonindicted 1 was awarded the first order by the construction business operator but the construction business operator did not reach ○○ and the conclusion of the contract, there are some cases of receiving money from the construction business operator. However, since Nonindicted 1’s failure to perform the qualification examination was caused by the mistake of the construction business operator who was the accomplice, Nonindicted 1 appears to have demanded compensation for the successful completion of his/her role within the entire commission of the crime of fraud, and the construction business operator seems to have paid a certain amount of money to Nonindicted 1 in mind, taking into account the future profits that he/she would have obtained from the crime of fraud even though he/she failed to commit the crime of fraud. Therefore, it cannot be concluded that the mere fact that the construction business operator paid money to Nonindicted 1 even though he/she failed to commit the crime of fraud does not constitute

③ The person demanding the money to Nonindicted 5, etc. and receiving the money is Nonindicted 1. From January 20, 2005 to December 2, 2008, Nonindicted 1 was dispatched to Nonindicted Company 9 in charge of the maintenance and repair of the ○○ Bidding System as employee of Nonindicted Company 8 and retired from the company thereafter. Since most of the fraud committed by Nonindicted 1, including the instant fraud committed by the Defendant related, were committed after the withdrawal, Nonindicted 1 cannot be said to have received money from the Defendant’s construction business operator in the position of “a person who administers another’s business.” Aside from Nonindicted 2, Nonindicted 3, and Nonindicted 4 received money every month from Nonindicted 1 in return for giving the successful bid information, Nonindicted 1 could not be deemed to have received money from Nonindicted 1 in return for raising the bid price information, and Nonindicted 1 could not be deemed to have received money from Nonindicted 1 in return for the Defendant’s act of breach of trust and trust, it is difficult to deem that the Defendant paid money to Nonindicted 1 and Nonindicted 2.

B) Therefore, the judgment of the court below to the same purport is just, and there is no error of misconception of facts or misapprehension of legal principles as alleged by the prosecutor.

3. Judgment on the assertion of unfair sentencing

The circumstances are favorable to the defendant, such as the fact that the defendant is deeply divided into his own crime, that it is difficult to regard the entire construction cost acquired by the defendant as the actual amount of damage, that the defendant introduced Nonindicted 1 et al. with the introduction of construction business operators, and that there is no benefit that he has acquired by himself while doing so, and

On the other hand, the fact that the reliability of ○○○’s Electronic Procurement System has been severely impaired due to the Defendant’s crime, the amount of the construction cost that the Defendant intended to receive or award due to the instant crime reaches 17 times a number of times, and the amount of the construction cost that he acquired by deception reaches approximately KRW 7.9 billion ( approximately KRW 17.9 billion), the instant crime was committed systematically and repeatedly over a considerable period, the fact that the instant crime was committed in a systematic and repeated manner, the fact that the Defendant did not receive or receive the direct bid, and that the Defendant introduced and arranged other construction business operators to Nonindicted 5, etc. without being awarded the direct bid, is disadvantageous to

In full view of the above circumstances and other factors, such as the Defendant’s age, character and conduct, environment, background of the instant crime, circumstances after the instant crime, etc., and the sentencing guidelines of the Sentencing Committee (two to forty-five years of imprisonment), the sentence imposed by the lower court against the Defendant is too heavy or unreasonable.

4. Conclusion

The appeal by the defendant and the prosecutor is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since there are no grounds for appeal by the defendant and the prosecutor. It is so decided as per Disposition.

Judges Seosung (Presiding Judge) Kim Sung-ju