(영문) 서울고등법원 2017.10.12. 선고 2016노1542 판결

B. M acquired five patents related to online electronic voting (patent number D, DE, DF, DG, and DH) from February 2, 2012 to February 2013 (based on the date of registration, date of registration, and page 212 to 354). The main contents of the patent are related to measures to strengthen security in online voting, such as key division technology, concealed signature technology, and non-Delegation technology (hereinafter referred to as “instant three technologies”), and the specific contents are as follows.

○○ Key Division Technology: A technology that ensures the security of electronic ballot boxes by dividing and keeping ballot boxes in many persons in charge of the organizations using the ballot boxes.The purpose of this technology is to decrypt the contents of ballot papers and store them in the electronic ballot boxes to ensure the secrecy of voting information (voting persons and contents of voting). ○○ bit Delegation technology: A technology that enables them to keep voting information (voting persons and contents of voting) by dividing them into a server and voters, and then to verify whether there is any change after the fact.

C. The Defendant proposed the online electronic voting business to O and K Co., Ltd. (hereinafter “K”), and on March 2013, K submitted a “online electronic voting proposal” to the effect that K would provide a platform and apply the patent security technology of this case owned by M, thereby satisfying the four principles of election and the guidelines for online voting (No. 358 through 425 of evidentiary record No. 1).

D. On June 4, 2013, theO entered into an agreement with K on the business of providing online voting services (Article 1473 through 1475 of the evidence record), and entered into an agreement on the operation of online (Internet and mobile) online voting services on October 2, 2013 (Article 3 of the evidence record No. 1476 through 1482 of the evidence record). Accordingly, M and K provide P services to the O from October 2013.

E. On September 15, 2014, S Co., Ltd. (hereinafter referred to as “victim Co., Ltd”) decided to acquire M’s shares and right of management owned by N Co., Ltd. (hereinafter referred to as “N”). On December 15, 2014, the Victim Co., Ltd and N entered into a prior agreement on M’s share and right of management transfer, method of acquiring M’s shares and right of management, schedule, etc. (Evidence No. 1, No. 182, No. 184 of the evidence record), and entered into an agreement on December 15, 2014, “M comprehensive agreement” (No. 185, No. 186 of the evidence record).

F. On December 31, 2014, AB Co., Ltd. (hereinafter “AB”), a subsidiary company of the victim company, entered into a contract for N and M/ and acquisition of management rights (hereinafter “instant agreement for acquisition of ownership and management rights”), and the Defendant, as an interested party, affixed a seal on the said contract (Evidence No. 188 through 192 pages).

G. On December 31, 2014, AB paid KRW 1 billion out of the purchase price of KRW 1.3 billion as stipulated in the contract to N on December 31, 2014 (Evidence No. 1, No. 194 of the Evidence Record)

2. Summary of the facts charged in this case

The facts charged of this case are as indicated in the annexed sheet. The purport of this case is that "the defendant has developed the patent security technology of this case, and the above patent security technology of this case has been actually applied to theO" is that "the representative director of the victim's company or Y of the head of the department or the head of the division, and he had V enter into a contract for acquisition of the shares of this case and the right of management of this case, thereby allowing N to acquire the pecuniary profit of KRW 1 billion under the above contract through AB, the subsidiary company of the victim company."

3. Summary of the judgment of the court below

The lower court found the Defendant not guilty of the facts charged on the ground that the evidence submitted by the prosecutor on the following premise that it is difficult to view that the Defendant committed the act of deception as stated in the instant facts charged against the representative director, V or Y of the victim company, and accordingly, it is difficult to view that V was proven to the extent that it had concluded the instant agreement on the share and the acquisition of management rights, and that there was no other evidence to acknowledge it.

A. The patent security technology of this case had already been developed since the commencement of the P service and had been placed in the form of Lburg2 in P’s basic engine.

B. The fact that M does not apply the patent security technology of this case to the P service is only subject to consultation with theO, which is the main body of the service.

C. The statement of V and Y alone cannot be deemed as deceiving the Defendant in relation to the application of the patent security technology of this case at the time of entering into a contract, and it is difficult to view that the Defendant had different contents from the fact in various documents sent by e-mail. There was no motive for the Defendant to commit deception.

D. It is difficult to view that V had caused the conclusion of a contract to acquire the instant shares and management rights by deceiving the Defendant.

4. Summary of the grounds for appeal by the prosecutor;

In full view of the following circumstances, the defendant could be recognized that the representative director V and Y of the victim company was accused as stated in the facts charged in this case and thereby, V had entered into a contract for the acquisition of the shares and the right of management in this case. Nevertheless, the court below acquitted the defendant of the facts charged in this case. The court below erred in the misunderstanding of facts.

A. Whether the patent security technology of this case was developed

According to the analysis report by the Supreme Prosecutors' Office of Science Investigation, the patent security technology of this case was laid onto P's basic engine only before July 23, 2015. The patent acquired by M is not a patent of ideas, but a patent of this case has been completed. Accordingly, M is not a patent having completed the development of the patent security technology of this case prior to the commencement of P service, or a patent has not been laid onto P's basic engine in the form of hybrid.

B. Whether consultation with theO is held

In light of the statements of AE, AG, and AI, it is difficult to deem that there was an agreement between theO and M on the application of the patent security technology of this case to P Services. In particular, AE is an agreement between theO and M to avoid applying the patent security technology of this case, but it was understood that it can be used selectively, and that it did not provide a certificate of completion of voting itself.

Furthermore, in full view of the fact that the O had officially promoted the commencement of the service that applied the instant patent security technology through the news report data, the fact that the instant patent security technology was not applied to the P service, making it impossible to verify whether the instant patent security problem occurred due to the lack of the application of the instant patent security technology, and that the O’s failure to suspend the service is merely an ex post facto situation in the situation where the P continues to be widely publicized as above, it cannot be readily concluded that the application of the instant patent security technology was not an important issue to the O.

C. Whether the defendant was guilty

O’s officers did not know that the instant patent security technology was not applied to the P Services. In light of the overall purport of various documents sent by the Defendant to V andY by e-mail, the instant patent security technology is applied to the P Services. Promotional materials produced based on the draft prepared by the Defendant and M’s employee, and even if the O employee was prepared under his/her responsibility, it merely proves that the O knew that the instant patent security technology was applied to the P Services in the O’s P Services. Accordingly, it is sufficiently recognized that the Defendant deceivings V and Y.

D. Defendant’s deception motive

Although there was no financial profit directly acquired by the Defendant through the contract for acquisition of the instant shares and management rights, the Defendant had been able to continue to exercise the patent right to the patent security technology of the instant case under the said contract, and obtained indirect profits, such as making it possible for the Defendant to continue the online survey business, which is the online survey business, to continue the instant patent security technology. Accordingly, the Defendant had the motive for the instant deception.

E. Difference between deception and property disposal

If the patent security technology of this case does not apply to the P service, the P business could not be carried out in a stable way, and if V or Y was aware of the above fact, the victim company did not enter into a contract for acquisition of the equity and management right of this case. This is because, although the application of the patent security technology of this case was an important trading condition, V or Y failed to verify it specifically, the victim company did not have the ability to confirm it, and it did not have any choice to believe the public relations of theO. Therefore, the causal relationship between the Defendant’s deception and the victim company’s disposal of property is recognized.

5. The judgment of this Court

A. Whether the patent security technology of this case was developed

Based on the circumstances indicated in its reasoning, the lower court determined that the instant patent security technology had already been developed since the commencement of the P service and had been transferred to the basic engine in the Rabler form.

In full view of the following circumstances revealed in accordance with the evidence duly adopted and examined by the court below and the court below, the above judgment of the court below is just and acceptable. The statement of the witness witnessN or the statement of the P license comparison analysis report, etc. submitted in addition to the prosecutor in the court below is insufficient to have probative value and it does not interfere with the above judgment. Therefore, this part of the judgment of the court below is not erroneous in the misunderstanding of facts as pointed out by the prosecutor.

1) According to the result of the appraisal conducted on July 1, 2017 in a related civil case analysis conducted on July 1, 2015 and July 23, 2015, the patent security technology of this case was placed in LI in LI in the form of "DI" on July 1, 2015, ② because the source code added before the PS Code was irrelevant to the core security technology in the form of "DI" on July 23, 2015, the fact that the core security technology was not modified, ③ the core security technology was submitted on July 1, 2015.

2) On July 23, 2015, according to the analysis report by the Supreme Prosecutors' Office of Science Investigation related to the prosecutor's office's inspection, the files of "DK", "DL", and "DM", which appear as the core of the patent security technology of this case, were already loaded in DI in LI in the form of "DI" on July 1, 2015 (Evidence No. 7, No. 3543 of the evidence record), and several files (N, DO, DP, DP, DR, and DS) pointed out that the files were added or revised before PS code server on July 23, 2015, were stored in LI in the form of "DI" (Evidence No. 3543 of the evidence record)" (hereinafter referred to as "N, DO, DP, DS) to apply the patent security technology of this case to P service of this case.

3) At the lower court, the F in charge of the development of the P Services stated that “the instant patent security technology was listed P in LB in the form of LBler, but “the condition in which the PP was not requisitioned,” “the instant patent security technology LBr itself was developed as B+7 around 2007, and that it was c++7) and finally completed the marketing into BB on around 2011 (java) and finally, it was found that the instant patent security technology was listed in P service early around May 2013 as a file (i.e., jar) and that the instant patent security technology was listed in G in the P PBler’s report (i.e., the trial record No. 984, 985, 99, 100), and “G became aware of the fact that the instant patent security technology was recorded in G in the PBV report in the form of PBler’s report (i.e., the record of the trial at issue).

4) Meanwhile, on June 1, 2015, after the conclusion of a contract for acquisition of the instant equity and management rights, NN entered M is inconsistent with the fact that the patent security technology of this case was loaded on the PS code server in the form of LOB, but the level of the technology was not lower than the test level, i.e., POC (POC 9) level, and was not applied to the level of services actually commercialized. On July 23, 2015, 2015, the PS code server also stated to the effect that the PS code was not a commercial service stage (the examination record No. 13,23, Jan. 17, 2017 for witness N), and the report No. 406, Nov. 17, 2017, the PS code was submitted as evidence, and the pertinent report No. 4067, Nov. 4, 2017, as evidence attached thereto (the pertinent report).

However, it is difficult to believe that the above appraisal results in the related civil procedure, N and V relations, the entry timing and retirement time of NN M, the actual entry details and details, the attitude of the statement in the trial court, etc. Furthermore, the above statement of N and the above statement of N are not problematic in performing the functions of the patent security technology of this case on July 23, 2015, the Supreme Prosecutors' Office's scientific investigation report to the effect that the above statement of N are inconsistent with the result of the analysis of the analysis of the research report of the scientific investigation department of the Supreme Prosecutors' Office (No. 7 rights of evidence record No. 353738). It is not persuasive in the process of examination of the examination of the trial of N and the trial of the trial of the trial of N.

5) In the case of a digital forensic analysis report (Evidence No. 414) submitted by a prosecutor to the trial court on July 24, 2017, the victim company was submitted in the relevant civil procedure. In light of the preparing entity, the time of preparation, details, etc., it cannot be deemed as evidence to have probative value to the extent that it excludes reasonable doubt about the facts charged by the defendant at least in a criminal case (one of the joint reporters of the above analysis report is a person who applied for the selection of appraiser in the relevant civil procedure). Furthermore, in the above report, both the file as of July 1, 2015 and the file as of July 23, 2015 were implemented in the form of several techniques, but there is no code to issue the above brine in the file as of July 1, 2015, and there is no record to issue the above brine.

B. Whether consultation with theO was made (related to the developments in which the patent security technology of this case was not applied to P services)

The lower court, based on the circumstances indicated in its reasoning, determined that M was merely a consultation with the O, the main agent of the operation of the P service, with the fact that M did not go through a master strawer for applying the patent security technology of this case to the P service.

In full view of the following circumstances as revealed by the evidence duly adopted and examined by the court below and the court below, the above judgment of the court below is justified. The fact-finding response to DU andO to the party-finding company does not interfere with the above judgment. Therefore, the judgment of the court below is not erroneous in the misconception of facts as pointed out by the prosecutor.

1) At the lower court, AE, a person in charge of the O, has been implementing the key division function. However, it clearly stated to the effect that the key division function was selectively used on the screen, and that it was closed so that it could not be selected (No. 864 of the trial record). In fact, where online electronic voting was carried out at the beginning of providing P services, the key division function is indicated on the screen presented to the manager of the user institution, but it was not activated (No. 806 of the trial record), but on July 23, 2015, the PS Code was amended to ensure that the key division function was used on the PS code (No. 7541 of the evidence record No. 3541 of the trial record). In addition, if the PS code applied the PS code to the effect that it would not be fully applied to the PS service, it can be recognized that it would not be applied to the case where it is difficult to use the PSM recording in bad faith (No. 6 of the trial record).

2) On June 2014, at an election of the AC Association, which was conducted using P services, the O provided a certificate of completion of voting related to the non-Delegation technology at the request of the foregoing Association, but delayed voting. Around July 3, 2014, theO decided not to provide a certificate of completion of voting through a meeting held by the P Service-Related Parties, including Defendant and K, Q, etc. (Evidence No. 6, No. 2893 of the Evidence Record).

Meanwhile, while recognizing the fact that AE did not apply until the system for the issuance of the certificate of completion of voting was verified at the court below, it is true that AE made a statement to the effect that “The suspension of the issuance of the certificate of completion of voting was not immediately an application of the non-Delegation technology” (No. 859 of the trial record). However, even according to AE’s statement, it is reasonable to view that AE’s statement was made by failing to understand the patent security technology of this case, and that “the service for the issuance of the certificate of completion of voting was not accurately aware of what elements of the patent security technology of this case, and was not at the location of verification” (No. 860 of the trial record), and that F stated to the effect that “the function for the issuance of the non-Delegation certificate was applied to the non-Delegation function at the time of the election of the AC Association at the court below (No. 1004 of the trial record).” It is reasonable to view that AE’s statement was made temporarily because it did not understand the patent security technology of this case.

3) In light of the above circumstances, it seems that the issue of whether the patent security technology of this case is applied to the P service was not an important issue from the perspective of theO, and the O, K, and M gradually expand the users after the commencement of P service by applying a certain level of security measures, and thus, it seems that the consultation on the progress of work is reached as it gradually applies the additional security measures, such as the patent security technology of this case.

A) The patent security technology of this case was listed in the P Basic Engine License Code in the form of Rabler, and the carcerma to be applied to P services was completed by F as a single work within a period not exceeding the month following the authenticity of V related to this case. If theO requested that the above carcer be completed in the process of developing the P service, M was immediately capable of applying the patent security technology of this case to P services.

B) The promotional materials distributed around October 2013 and around December 2013 by theO publicizeds the overall security of the P service, but there was no indication that the aforementioned technology was applied to the P service in specifying the patent security technology of the instant case (No. 6, No. 3141, 3142 of the Evidence Records).

C) Until the instant case becomes an issue, theO did not specify the level of security measures to be taken by K or M with respect to the P service, and the project proposal submitted by K to K was not included in the terms of the online voting service operation agreement on October 2, 2013 between theO and K with respect to the P service.

D) At the time of the prosecutor’s investigation, K stated to the effect that “O was aware that the patent security technology of this case was applied in the order of each stage if it is necessary (Evidence No. 3, 1368, 1369).”

E) P service was anticipated to be used mainly in the election of private areas at the time of its commencement, and there was no company, other than K, to bear the cost of the P service development. In this context, theO appears to have gradually expanded its users after commencement of the P service by applying a certain level of security measure, such as the operation of exclusive dedicated fire wall, intrusion prevention system, access control system, etc., system connection and access control system, confirmation of system connection and route records, and separation of access authority of various security systems managers, P service server managers, and database managers.

F) The P Service was operated until August 13, 2015 without the application of the instant patent security technology. However, during that process, there was no security-related problem, such as drilling of the security system or modification of voting information. Unlike the concerns of the victim company, theO did not terminate the instant patent security agreement with K on the ground that the instant patent security technology is not applied to the P Service, or did not impose legal responsibility on K or M on it.

C. Whether the Defendant committed deception

Based on the circumstances indicated in its reasoning, the lower court determined that the Defendant could not be readily concluded that the acquisition of the instant shares and management rights solely based on the statement of V and Y had induced V and Y with regard to the application of the patent security technology of this case at the time of entering into a contract, and that it is difficult to view that the Defendant included any different content from the fact in various documents sent by e-mail

1) P service has been normally operated since August 2015 after completing a series of complementary measures, such as the application of the patent security technology of this case, etc. (the result of the response to the fact-finding by the lower court as to the fact-finding inquiry, 705 pages of the trial record).

On July 21, 2015, when the prosecution investigation of this case was in progress, the prosecution investigator called OAG official around July 21, 2015. At the time, the AG official asked the above AE official about whether the AE official was investigated and phoneed to K on the business, and whether the BG official applied the PP technology, such as key division, concealment signature, and non-Delegation. At this point, K had a security technology, currently there is a security technology, and it is possible in the present site, and it is not applicable to the B. Since it is possible to apply the IG official to the P, even in the current site, it is called that the I would request the K to apply the PP technology, such as key division, concealment signature, and non-signing signature, etc. (Evidence No. 4191, 1912 of the evidence record). Ultimately, after the above call, it appears that the PP technology was not applied at the time of the application of the P Security service.

2) As seen earlier, not only the Defendant, F, G, K’s Q, and AD that the instant patent security technology is not applicable to the P Services, but also the AE, which was in charge of the P Services at the time in the O, was aware of not only the fact that the Defendant, F, G, and K, but also the fact that the AE did not recognize that the service of issuing the certificate of voting completion is related to the t delegation technology, it seems to have been aware that at least the K-division technology is not applicable to the P Services).

In such a situation, it is difficult to readily conclude that the Defendant deceivings V and Y on the instant patent security technology under the knowledge that many participating in P are not applicable to the P service.

3) There is no provision related to the application of the patent security technology of this case in anywhere to which the instant share and management right transfer agreement is entered, and there is no provision in other annexed documents. Furthermore, there is no fact that V and Y have taken measures, such as verifying the application of the instant share and management right even after they were transferred, or confirming K andO.

4) If the Defendant said that the patent security technology of this case is applied to V or Y, it is difficult to easily accept the fact that the patent security technology of this case is not applied to V through e-mail around June 22, 2015, prior to the filing of a petition and investigation with respect to this case.

5) In various documents sent by the Defendant to V by e-mail around July 17, 2014 (such as the letter of introduction by M companies and the current status of the online voting world market, etc. of July 2014), the content that “AF, an electronic voting engine,” which is the instant patent security technology developed by M, is based on the instant patent security technology, is not specified that the instant patent security technology is actually applied to the P service (Evidence 2, Title 76 through 794 of the evidence record).

6) The documents sent by the Defendant by e-mail to V around September 19, 2014 include the title "online voting introduction, P," and include the contents concerning the patent security technology of this case in "6. online voting security technology" and "7. online voting principal technology" (Article 55 through 574 pages). However, unlike the above 6.7 items in the documents, "8. online voting flow map" and "9. online voting (P) application cases" indicate "P" differently from the above 6.7 items, it cannot be deemed that M holds the patent security technology of this case in relation to online voting, and that the patent security technology of this case is actually applied to the P service.

7) Of the e-mail sent by the Defendant to Y around November 3, 2014, the part stating “the supply of core engines and the establishment of a system to the Z Electronic Total System” in 2009, as long as M actually was in charge of the establishment of the above electronic shareholders’ meeting system, there is no particular fact (Evidence No. 1 Book for Document of Evidence Records No. 577).

8) It is clear that the content that O posted on the P homepage with respect to the P service or distributed through public relations leaflets is only prepared by the employee of theO under his/her responsibility, and that the Defendant was not prepared to deceiving the victim company or V, or Y.

9) The promotional materials distributed by theO around October 2013 and around December 2013 did not indicate that the patent security technology of this case was applied to the P Services (No. 6, No. 3141, 3142 of the evidence record). Meanwhile, the promotional materials distributed around June 2015 by theO included the patent security technology of this case (No. 3, No. 1581 of the evidence record) but the production of the promotional materials was made by referring to the existing materials in the lower court. After the production of the promotional materials, there was no written request for confirmation or review of the contents of the promotional materials to KK Q or the Defendant, etc.

10) The e-mail sent by K to AK on August 10, 2013, which is an employee of M, can be interpreted to the effect that it proposes to gradually apply the patent security technology of this case to P service in the future as a response plan (No. 7 rights of evidence No. 3634 of the record).

D. Regarding the Defendant’s motive for deception

The lower court, based on its stated reasoning, determined that the Defendant could not find the grounds for deceiving the victim company, V, and Y.

1) The parties to the contract are N and AB, a subsidiary of the victim company, and the defendant does not have any financial profit directly acquired in connection with the above contract (M shares and management rights were transferred to AB, not the defendant, so the subject who acquired the acquisition price through the performance of the contract was not the defendant but the party to the contract, and there is no evidence to prove that the defendant received money separately in connection with the contract).

2) Since the patent holder of the patent related to the patent security technology of this case is M, it is difficult to view that the above patent-related right directly belongs to the defendant. It is recognized that the above patent-related right belongs to one of the inventors of the above patent, but BD is not even helpful to obtain a patent in the prosecutor's investigation, and it is not helpful to obtain a patent in its research performance or career. F stated to the effect that it is the same that it is registered as an inventor by evaluating its contribution portion, but it is not possible for the F to memory because there is no interest in whether or not it has been granted a patent (Evidence 1461, 1462 of the evidence record No. 3, No. 361, 1462 of the evidence record), and G also stated that "the patent is not necessary to develop T." (No. 1042 of the trial record). It cannot be deemed that the defendant had induced V or Y to exercise the above patent right.

3) The planning and development of the online survey project (T) in the different business areas of M is conducted under the lead of G, not the Defendant, and the Defendant was not in the shareholder status of M on around 2014 (Evidence No. 7No. 3554 of the evidence record). As such, the Defendant cannot be deemed to have obtained direct benefits from the successful development of T. Furthermore, insofar as there is no evidence to deem that the Defendant would have suffered economic damage in the event of a merger of M by N, not the victim company, it is difficult to deem that the Defendant had deceiving V or Y even when he was under the risk of criminal punishment for the progress of T business.

E. Difference between deception and property disposal

The lower court, based on its stated reasoning, determined to the effect that it is difficult to view V as entering into a contract for acquisition of equity and management rights in this case by deceiving the Defendant from the Defendant.

On the other hand, fraud is established by deceiving another person to make a mistake by inducing the act of disposal, and thereby inducing the delivery of property or pecuniary gain. Therefore, there should be causation between deception, mistake, and property disposal act. On the other hand, what act constitutes deception that causes a mistake to another person, and whether there exists causation between such deception and property disposal act should be determined generally and objectively in consideration of the specific circumstances at the time of the act such as transaction, the other party’s knowledge, character, experience, occupation, etc. (see, e.g., Supreme Court Decision 2011Do8829, Oct. 13, 2011).

In full view of the following circumstances revealed by the aforementioned legal principles and evidence duly adopted and investigated by the court below and the court below, the above judgment of the court below is just and acceptable, and there is no error of law of mistake of facts as pointed out by the prosecutor.

1) In light of the following circumstances, at the time of entering into a contract, V determined that M is continuously engaged in certain sales through the P service, and the application of the patent security technology of this case seems to have not been a major issue.

A) At the prosecution investigation process and the lower court, the Defendant, F, and G have consistently stated that: (a) the instant patent security technology was not asked as to whether the instant patent security technology was applied to P service at the time of the conclusion of the contract; and (b) the reasons therefor; and (c) the instant patent security technology was not specifically explained.

B) V and Y argued that the patent security technology of this case is applied to the P service in the process of concluding the contract. However, V and Y did not make efforts to confirm the application of the patent security technology of this case in the process of entering into the contract, and they did not make a reasonable explanation, such as assertion that it is due to the belief of the Defendant, even in fact, the reason is that the patent security technology of this case is applied to the P service.

2) In view of the following circumstances, there is sufficient room to deem that the conclusion of the instant agreement on the acquisition of equity and management rights by transfer was made by evaluating the business feasibility of T in addition to P services from a long-term perspective.

A) On March 2015, 2015, where V had the instant equity and management right acquisition prepared for the purpose of attracting external investments after the conclusion of the contract, the MM’s major business areas indicate the P services, which are online electronic voting business, and the online survey business, as the main business areas of M. However, as of the year 2015, the said business opening statement includes approximately KRW 42.5 billion the estimated sales amount related to online voting business for the next five years, while the estimated sales amount related to the online survey business is indicated as KRW 273 billion, the estimated sales amount related to the online survey business. In addition, the said business opening statement also indicates that M will enter the global market via T.

B) Around May 22, 2015, V made a statement that M shares and acquisition of management rights in M M M have been reported to the value of T. Accordingly, V made a statement that he/she would have been able to continue the development of T by attaching F and G, stating that he/she would retire from M at that time. However, this is nothing more than that of a person whose development of T and creation of profits therefrom are important.

C) Even in a situation where there was no external investment attraction after the acquisition of M shares and management rights, V, in order to develop T, excluded the manpower and the place of business related to the P service and sought a demand from G to separately subsidize development costs exceeding KRW 30 million every month. Y also argued that G, who has developed T, would use the amount of KRW 3 billion out of the investment amount, would be used for the development of T.

3) Unlike the expectation at the time of acquisition of M shares and management rights, V had experienced serious financial difficulties from around April 2015 due to failure to attract external investments, and there was a dispute between N and N as a result of the violation of M&A’s obligation to implement capital increase with consideration (Article 5 of the Comprehensive Agreement between the victimized Company and N on December 15, 2014) and the obligation to obtain written consent from N at the time of waiver of M business (Article 7(5) of the Pledge Agreement between AB and N on December 31, 2014). Therefore, it is difficult to avoid the possibility that V would be subject to the non-application of the patent security technology of this case, which was not a particular issue at the time of the conclusion of the contract for acquisition of shares and management rights in this case.

4) As seen earlier, the patent security technology of this case had already been listed in the PS code in the form of Rabler, but it seems that there was an agreement with the O to gradually apply it. In light of the fact that the patent security technology of this case was supplemented and the P Services are operated in a stable manner after the completion of the contract, it is difficult to view that whether the patent security technology of this case was actually applied to the P Services at the time of the conclusion of the contract was an important trading condition to the extent that the existence of the P Services would depend on whether the patent security technology of this case was actually applied to the P Services.

F. Sub-committee

Ultimately, all individual arguments presented by the prosecutor as the grounds for appeal cannot be accepted.

[Defendant’s e-mail sent to V around July 17, 2014; Defendant sent e-mail to V around September 19, 2014; Defendant sent e-mail to V around November 3, 2014; and Defendant’s e-mail sent to Y around November 3, 2014, etc. can not be seen as deceiving “the patent security technology of this case was actually applied to P service at the time of entering into the contract;” and Defendant could not be seen as being aware of the fact that the patent security technology of this case was actually applied to P service at the time of entering into the contract. Furthermore, the patent security technology of this case was already subject to management code in the form of “the patent security technology of this case at the time of entering into the contract” and “the patent security technology of this case was not applied to the P service at the time of entering into the contract, and there was no apparent lack of evidence and evidence that the patent security technology of this case was not applied to the P service at the time of entering into the contract.”

Furthermore, if it is important to determine whether the patent security technology of this case is actually applied to the P service as the prosecutor's assertion, it is difficult to understand from the victim company that entered into a contract for acquisition of a company by paying a large amount of money, and even according to the evidence submitted by the prosecutor, it is readily possible to confirm the fact that the patent security technology of this case is not applied to the P service at the time of entering into the contract, so it is too easily possible to confirm that the patent security technology of this case is not applied to the P service at the time of entering into the contract. In light of this point,

6. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges

Judges or higher-ranking judges

Judges Shin Jae-ok

Judges Kim Young-hun

Note tin

1) Only the matters directly related to the facts charged in the instant case are simplified.

2) As a set of "in the form of a computer programming code" in which a particular function is performed, a set of "in the form of a computer programming code" shall be created and paid according to the needs to refer to and call out the number of boxes listed in the Rabler in another program, and individualized computer programs suitable for a specific project.

3) Determination on the individual grounds for appeal (a specific mistake of facts by the court below) as stated by the prosecutor for convenience is made in order, and the decision of this court is added to the theory of lawsuit.

4) On July 1, 2015, 2015, after the commencement of a PS code server around December 2013 and the prosecution investigation of the instant case, N voluntarily submitted to the prosecution on July 1, 2015, the source code content related to the patent security technology of the instant case is identical (Evidence No. 1 Title 30 of the Evidence Record).

5) During the investigation of the instant prosecution from July 23, 2015 to July 17:40, 2015, there were verification for the purpose of ‘A', ‘A' and ‘A' and ‘B' verification of the realization of encryption technology of the suspect and F, ② ownership of encryption technology, functions and level of each section during the process of election information, ③ possession and application of the source technology UI (user screen) services using encryption technology, ④ verification of whether the P system is implemented or not’ (Evidence No. 4 right 2009 of the evidence record). The PS code submitted by F at the time is the PS server on July 23, 2015.

6) An appraisal document prepared by the appraiser DJ as designated by the court in the appellate trial of related civil cases as of July 1, 2017 is a statement of appraisal prepared by the court. AB or the victim company filed a lawsuit with N, Defendant, and F as a co-defendant with the Seoul Central District Court, and lost on July 1, 2016 (Supreme Court Decision 2015Da549804). The plaintiffs filed an appeal and continue to exist in Seoul High Court 2016Na204914.

7) It is a kind of computer programming language.

8) It is a kind of computer programming language.

9) POC means the use of new technology that has not been used in the existing market for the purpose of verification prior to the introduction into a project.

10) The prosecutor stated that the victim company was enrolled in the victim company around June 1, 2015 for the management and operation of the electronic voting system after taking over M (Article 1st page of the evidence record). However, from July 2004 to March 7, 201, N had already worked as the development team director of the victim company, and had been working as the victim company or V and continued to work as the representative director of the DT company from May 201, and even according to its statement, "V was the developer who is well in accordance with the list of technology desired for the victim company." Above all, in relation to the instant case, the prosecutor made a statement on behalf of the victim company and submitted relevant evidence, and the victim company was removed from the victim company on July 2015 (Article 37th page of the evidence record) and the prosecutor’s office made a statement about the management and operation of the victim company and the witness examination in fact in the electronic voting system (Article 11st page of the victim company).

11) The circumstances of the lower court based on such determination are as follows.

① V and Y did not specify the application of the instant patent security technology to the P Services in documents, such as the M management right prior agreement, the comprehensive agreement, and the acquisition agreement, and did not obtain a written confirmation from the Defendant.

② At the time of entering into a contract, V and Y did not formally ask K orO about whether the patent security technology of this case is applied to the P service in the course of entering into the contract.

③ V and Y did not verify the application of the instant patent security technology by means of the actual verification of the source code of P service in the course of the verification process to conclude the contract with respect to the acquisition of the instant equity and management rights.

12) The deception as a requirement for fraud refers to any affirmative or passive act that has a fiduciary duty and duty in good faith in property transaction. The deception by omission refers to any passive act that a person subject to duty of disclosure is unaware of being involved in a mistake in a certain fact and does not notify the other party thereof. In cases where it is evident that the other party would not have been aware of such fact in light of the empirical rule of general transactions, if it would have been evident that the other party would not have been aware of such fact, legal obligation to notify such fact is recognized in light of the good faith principle (see, e.g., Supreme Court Decision 2016Do7731, Aug. 17, 2016)

Attached Form

A person shall be appointed.

심급 사건

-서울중앙지방법원 2016.5.19.선고 2015고합716

서울고등법원 2017.10.12.선고 2016노1542

-대법원 2017.12.28.선고 2017도17454

참조조문

-특정경제범죄 가중처벌 등에 관한 법률

-형사소송법 제364조 제4항

참조판례

-대법원 2011. 10. 13. 선고 2011도8829 판결

유사 판례

-부산지방법원 가정지원 2008.11.14.선고 2008드단14912 판결

-부산가정법원 2019.6.19. 선고 2017르21378 판결

-부산가정법원 2019.6.19.선고 2017르21378 판결

-대구가정법원 2014.1.8.선고 2013드단3561 판결

-부산가정법원 2015.3.24.선고 2014드단9249 판결