2015Do10570 Fraudulent

Defendant 1 and one other

Prosecutor (In respect of Defendants)

Law Firm Yang (for the Defendants)

Attorney Yellow-ju et al., Counsel for the defendant-appellant

Cheongju District Court Decision 2014No1137 Decided June 12, 2015

December 27, 2019

All appeals are dismissed.

The grounds of appeal are examined.

1. Of the facts charged in the instant case, the gist of the fraud is as follows.

Defendant 1 is the representative director of the non-indicted corporation registered as a comprehensive cultural heritage repair business entity (hereinafter referred to as "non-indicted corporation"), and Defendant 2 is the cultural heritage repair business entity belonging to the non-indicted corporation. However, part of the cultural heritage repair business entity owned by the non-indicted corporation and six cultural heritage repair business entity who are engaged in cultural heritage repair business is registered as a cultural heritage repair business entity by fraudulent or other illegal means and is not engaged in cultural heritage repair business. In addition, Defendant 1 was planned to allow the non-indicted 2 to perform the repair business of cultural heritage in the name of the non-indicted corporation, and actually was not capable of directly performing the repair business of cultural heritage. Nevertheless, Defendant 1 entered into a contract on August 17, 2012, the non-indicted 3 was a comprehensive cultural heritage repair business entity who has been constantly possessing four cultural heritage technicians, etc., and the non-indicted corporation did not directly perform the above construction business and entered the contract in the victim's name, "one copy of the contract and the other 20th of the construction document."

2. The lower court reversed the judgment of the first instance court that found the Defendant guilty on the following grounds, and rendered a not guilty verdict.

First, barring any special circumstance, such as where there exists a special agreement between the parties in the construction contract or where the contractor cannot perform the construction work in accordance with the principal place of the obligation due to the nature of the contract, the contractor cannot be deemed to have fulfilled the construction work directly by the contractor, and even if using the performance assistant or performance agent, the contractor cannot be deemed to have fulfilled the construction work as stipulated in the construction contract. In this case, apart from punishing the act of name lending, payment of site transfer money, actual subcontracting, etc., which is a long-term unique practice in the cultural heritage repair industry, as a violation of the Act on the Repair, etc. of Cultural Heritage, and the act of performing official duties by fraudulent means, it cannot be deemed that the non-indicted company failed to perform the construction work properly in accordance with the contents and the period stipulated in each contract in this case through Defendant 2, and it cannot be deemed to be a deception which is a requisite for the establishment of fraud.

Second, the Act on the Maintenance, etc. of Cultural Heritage (hereinafter referred to as the "Act on the Maintenance, etc.") provides for the purpose of public interest as a means to clarify the contract procedures and to observe the fairness of tendering procedures by clarifying the contract procedures and establishing a clear and objective standard to determine whether the entity is capable of performing the repair of cultural heritage when determining the qualification requirements of the entity of the repair of cultural heritage and concluding the contract for the repair of cultural heritage, etc.

Third, in this case, Defendant 2, a cultural heritage repair engineer who is recognized as capable of performing the repair of cultural heritage according to various records of construction confirmed by the time of each contract of this case, was scheduled to perform the repair of cultural heritage, and in fact, the repair of cultural heritage of this case has been completed, and no particular defect or problem has been found, there is no evidence proving that the Defendants did not have any intention or ability to perform

3. Fraud is a crime established by deceiving another person to make a mistake by inducing the act of disposal and thereby receiving property or pecuniary gain by inducing such act of disposal. The essence of fraud is the acquisition of property or pecuniary gain by deception (see Supreme Court Decision 2011Do48, Feb. 27, 2014, etc.).

In addition, fraud is established when the property right, which is the legal interest and interest of fraud, is infringed. Therefore, in order to be a deception of fraud, the intent of the unlawful acquisition or the deception should be the deception of the other party with the intent to commit the crime. The criminal intent of the unlawful acquisition, which is a subjective constituent element of fraud, should be determined by comprehensively taking into account the objective circumstances such as the defendant’s financial history before and after the crime, environment, details of the crime, process of transaction execution, etc. In particular, the establishment of fraud through deception in a construction contract should be determined by whether the victim had the intention to acquire the construction cost, etc. from the victim by making a false statement as if the defendant had no intent or ability to complete the construction work at the time of the contract, even though the contract does not have the intent or ability to complete the construction work. In such case, the court shall determine the content of the construction contract, the process of the conclusion, the process of the contract, or the result thereof (Supreme Court Decisions 207Do10416, Feb. 28, 2

4. 24. See Supreme Court Decision 2007Do9802 Decided 24.

Meanwhile, the legal interest in fraud is a property right, and thus, fraud is not established solely on the ground that the State or public legal interest was infringed by deception. Therefore, if there is a violation of administrative laws and regulations regulating the relevant business or affairs at the time of the construction contract, qualification for participation in bidding, contract procedure, etc., such circumstance alone should not readily conclude that the act of entering into a construction contract constitutes deception. As such, even if the performance is performed in accordance with the contract, it can be deemed that the completion of construction is impossible, the determination of whether the unlawful act is essential in the content of the construction

4. We examine the judgment of the court below in light of the above legal principles. The court below found Defendant 1 not guilty on the ground that Defendant 1’s act of registering cultural heritage repair business, act of leasing a certificate of qualification and act of using a certificate constitutes a violation of the Repair of Cultural Properties Act, and act of obstructing the performance of duties by public officials in charge of contracts constitutes obstruction of performance of official duties by deceptive means, but with respect to fraud, it is difficult to deem the Defendants to have no intent or ability to perform construction works at the time of entering into each of the contracts of this case. Each of the crimes which the court below found guilty is all the crimes that protect the national

In addition, since each of the contracts of this case was concluded, the construction cost is not paid immediately.

The lower court determined that it is difficult to view that the Defendants’ act of paying the construction cost constitutes the defraudation of property in fraud unless there are particular defects or problems found in the completed construction work, even though the Defendants completed the construction work in accordance with the terms and conditions stipulated in each of the instant contracts and completed the construction work.

Such judgment of the court below is not erroneous in the misapprehension of the rules of evidence or in the misapprehension of legal principles on fraud, which affected the conclusion of the judgment.

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

Justices Park Jung-hwa

Justices Kwon Soon-il

Justices Lee Dong-won

Justices Kim Gin-soo