Defendant 1 and four others

Defendants

Statch and leather

Attorney Yoon Jin-jin

Suwon District Court Decision 2008 Godan1212 Decided July 4, 2008

All the judgment below is reversed.

Defendant 1 shall be punished by a fine of KRW 5,000,000.

When Defendant 1 fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.

Defendant 1 shall order the provisional payment of an amount equivalent to the above fine.

Of the facts charged in the instant case, each of the Defendants’ violation of the Digital Signature Act against the Defendants and each of the Defendants’ interference with bidding as of June 28, 2005, March 13, 2006, July 7, 2006, August 10, 2006, February 13, 2007, February 23, 2007, February 27, 2007, and February 27, 2007, respectively.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

(1) The charge of violating the Digital Signature Act among the facts charged in the instant case

Defendant 2 and 3 are the business owner of each ○○tech and ○○ System, and Defendant 4 is the representative director of each ○○ Information Technology Corporation, and thus, the issuance of an authorized certificate under the name of each ○ Information Technology Corporation does not constitute the issuance of an authorized certificate by others.

In addition, Article 23(2) of the Digital Signature Act provides that the phrase “a person who has obtained an authorized certificate in the name of another person” ought to be interpreted in cases where he/she has obtained the authorized certificate in the name of another person at his/her own discretion. Therefore, it is unreasonable for the court below to misunderstanding the fact that Defendant 1, the representative director of Defendant 5, had Defendant 2, 3, and 4 issue the authorized certificate in the name of each of the above businesses, and let Defendant 1, Defendant 2, 3, and 4 renew the authorized certificate in the above businesses to Nonindicted 1, 2, who was an employee of Defendant 5, and Defendant 2, and Defendant 2, 3, and 4 were conducted with the consent of Defendant 2, 3, and 4, and even if Defendant 2, 3, and 4 managed and controlled the authorized certificate in each of the above businesses, thereby

(2) The charge of interfering with bidding among the facts charged in the instant case

Defendant 1’s bid is an electronic bid ordered by the Public Procurement Service. In the case of an electronic bid, a number of white companies are to be invested in several hundreds. In fact, Defendant 1’s consultation on bid price is a maximum of three companies (○○ Information and Communications Co., Ltd., ○○○○○, and ○○ system). As such, Defendant 1’s above act alone did not reach the degree of obtaining the same conclusion as a collusion, and it cannot be deemed that Defendant 1’s act did not constitute a case where the degree of deceptive scheme did not reach the degree of obtaining the same conclusion, and that it did not constitute a case where it harms the fairness of bidding by causing unfair influence on the adequate price formation through fair competition. Thus, it is unreasonable for the lower court to acknowledge Defendant 1

B. Unreasonable sentencing

In light of the various sentencing conditions of this case, each sentence (Defendant 1: 6 months of imprisonment, 2 years of suspended sentence, 2 years of imprisonment, 2, 3, and 4: each fine of one million won, and 5 million won in case of Defendant 5: fine of five million won) imposed by the court below against the Defendants is too unreasonable.

2. Determination

A. Fact-finding or misapprehension of legal principles

(1) Facts of recognition

According to the evidence duly admitted and examined by the court below, the following facts are recognized:

(A) Defendant 1’s representative director, Defendant 2’s executive director, and Defendant 5’s representative director and representative director of ○○tech, Defendant 3’s representative director and representative director of ○○ System, Defendant 4 and representative director of ○○ Information Technology Corporation, and Defendant 5 are corporations established for the purpose of database business.

(B) In order to increase the successful bid rate in participating in the electronic bidding of “BL” managed by the Public Procurement Service for the purpose of receiving government-grade service projects, the Defendants established a ○ System in the name of Defendant 2, 3, and 4, which is the employees of Defendant 5 Company operated by Defendant 1, and obtained an authorized certificate in the name of Defendant 1, and participated in the bidding and won a successful bid, all the construction works are to be performed by Defendant 5 Company. Defendant 2, 3, and 4 respectively, and Defendant 2, 3, and 4 established the ○ System in the name of Defendant 5 Company.

(C) On April 2, 2005, Defendant 1 instructed Defendant 5 Co., Ltd. (hereinafter omitted) to apply for the issuance of an authorized certificate for electronic bidding at the office of Defendant 5 Co., Ltd. (hereinafter omitted). On the same day, Defendant 3 had access to the website of the Korea Securities Computer Co., Ltd. and issued an application for the issuance of the ○○ system and ○○tech’s authorized certificate.

(D) On April 7, 2005, on the same day, Defendant 3 visited the above office to deliver to Defendant 3 two copies of the reference number and authorization code after receiving the application for the issuance of an authorized certificate, the application for the registration of ○○tech and the ○○ System’s business registration certificate, Defendant 2’s front and back identity card, Defendant 3’s identity card, etc., which was transferred by Defendant 2 from Defendant 3, and Defendant 3 received from Defendant 3. On the same day, Defendant 3 had access to the Korea Securities Computer System’s website and entered the above reference number and authorization code, and obtained a copy of the authorized certificate in the name of ○○tech and ○ System.

(E) On February 17, 2006, Defendant 4 instructed Nonindicted 1, who was an employee of Defendant 5 corporation, to file an application for the issuance of an authorized certificate for electronic bidding of ○ Information Technology Co., Ltd. on the same day by obtaining his identification card, business registration certificate, etc. at the above office, and Nonindicted 1 issued an application for the issuance of an authorized certificate of ○○ Information Technology Co., Ltd. by accessing the website of Korea Securities Computer Co.

(F) On February 27, 2006, the person whose name was poor in the name of the employee of the Korea Securities Computer Company was visited the above office to deliver the reference number and one authorization code to Nonindicted 1 after the receipt of the application for issuance of an authorized certificate, Defendant 4’s front and back of his identification card, etc. from Nonindicted 1. On the same day, Nonindicted 1 had access to the Korean Securities Computer Company’s website, and obtained an authorized certificate in the name of ○ Information Technology Company by entering the above reference number and authorization code.

(G) Each authorized certificate under the name of ○○ System, ○○○ System, and ○ Information Technology Co., Ltd. was valid for one year, respectively. Nonindicted Party 1, with Defendant 2 and 3’s consent, connected the Internet homepage of the Korea Securities Computer Co., Ltd. at the end of March, 2006, applied for the renewal of the ○ System and ○○tech’s authorized certificate, and obtained the authorized certificate under the above ○ System and ○tech’s name.

(h) On February 207, 2007, Nonindicted 2, an employee of Defendant 5 Co., Ltd., applied for renewal of ○ Information Technology Co., Ltd.’s official certificate after accessing the office of Defendant 5 Co., Ltd. (hereinafter omitted) to the office of Seocho-gu, Suwon-si, Youngdong (hereinafter omitted), with Defendant 4’s consent, and obtained the said ○ Information Technology Co., Ltd.’s official certificate under the name of the said ○○ Information Technology Co., Ltd.’s official, and obtained the said ○ System and ○tech’s official certificate with Defendant 2 and 3’s consent.

(i) Defendant 1, 2, 3, and 4 participated in the electronic bid “Bater” managed by the Public Procurement Service for the purpose of receiving government-funded services through an authorized certificate issued in the name of Defendant 5, ○○ System, ○○○tech and ○○ Information Technology Co., Ltd. as indicated in the attached bidding details. The number of companies at the time participated in each bid is as indicated in the total number of bidding companies among the above bidding details.

(j) On the other hand, from January 2005, the Public Procurement Service has implemented a system that limits the opportunity for bidding so that it can be administered only once in the same PC in the case of the same bidding from the same point of view.

(2) Determination as to the violation of the Digital Signature Act among the facts charged in the instant case

(A) Summary of the facts charged

Defendant 1 is a representative director of Defendant 5 Stock Company; Defendant 2 is an executive director of Defendant 5 Stock Company; Defendant 3 is a representative of ○○○○ System, a director of Defendant 5 Stock Company; Defendant 3 is a representative of ○○ System; Defendant 4 is a representative director of ○○ Information Technology Co., Ltd.; Defendant 5 is a corporation established for the purpose of database business, etc.

【Defendant 1, 2, 3, and 4’s Digital Signature Act Violation】

No person shall have an authorized certificate issued in the name of another person or allow another person to obtain it.

In order to increase the successful bid rate in participating in the electronic bidding of “Ber” managed by the Public Procurement Service for the purpose of receiving government-funded service projects, the Defendants established a china in the name of Defendant 2, 3, and 4, who is the employees of Defendant 5 Company operated by Defendant 1, respectively, and participated in the bidding after obtaining an authorized certificate under the above china’s name, and won a successful bid, all of the construction works shall be conducted by Defendant 5 Company. Defendant 2, 3, and 4 respectively, and Defendant 2, 3, and 4 established ○○tech, ○○ system, and ○ Information and Technology Company.

On April 7, 2005, the Defendants conspired to obtain an authorized certificate in the name of another person, such as the ○ System, ○○ System, and ○○○ System, ○○○ System, and ○○ et al., and the seeing code, and obtained an authorized certificate in the name of another person.

In addition, around February 27, 2006, the above defendant 5 was issued an authorized certificate in the name of ○ Information Technology Co., Ltd. after accessing the Korea Securities Computer Network website, and entering the reference number and authorization code of ○ Information Technology Co., Ltd., the ○○ Information Technology Co., Ltd., the aforementioned website.

In such a way, the Defendants conspired to obtain or allow the issuance of an authorized certificate in the name of another person, such as the ○ system, ○○ System, ○○tech, and ○ Information Technology Co., Ltd., from April 7, 2005 to April 2, 2007, as indicated in the details of the issuance of an authorized certificate.

【Violation of the Digital Signature Act】

At the above date and place, Defendant 1, the representative of Defendant 5 Stock Company, issued an authorized certificate in the name of another person with respect to the business of Defendant 5 Stock Company.

(B) The judgment of the court below

Based on the evidence submitted by the prosecutor, the lower court found all Defendants guilty of violating the Digital Signature Act.

(C) Judgment of the court below

1) Relevant statutes

The entry in the attached Form is as specified in the relevant statutes.

2) Determination

A) Part 1 of the details of the issuance of the attached certificate

According to the above facts, among the facts charged in this case, since Defendant 3 obtained an authorized certificate under the name of the ○ System in which he was his representative, the above part cannot be deemed to constitute “cases where an authorized certificate was issued under the name of another person” under Article 23(2) of the Digital Signature Act, and it cannot be deemed to constitute “cases where Defendant 1, 2, and 4 had Defendant 3 obtain an authorized certificate under the name of another person,” and the evidence submitted by the prosecutor alone does not constitute “cases where Defendant 1, 2, 3, and 4 conspired to obtain an authorized certificate under the name of another person.” There is no evidence to prove that

Therefore, the judgment of the court below that differs from this conclusion is erroneous in the misunderstanding of facts, which affected the conclusion of the judgment, and therefore, the defendants' appeal on this part is justified.

B) 2 through 8 parts of the details of the issuance of the attached certificate

According to the above-mentioned-related Acts and subordinate statutes, ① The purpose of the Digital Signature Act is to confirm the signatory of the electronic document processed in the Internet environment for the activation of electronic commerce and to secure the safety and reliability of such electronic document; ② The authorized digital signature creating key includes one requirement; ② A licensed certification authority provides that “the subscriber at the time of signature shall control and manage the digital signature creating key; and ③ A person who violates Article 23(2) of the Digital Signature Act shall keep the subscriber’s digital signature creating key or use or divulge it without the consent of the subscriber who applied for the custody of the digital signature creating key, or a fine not exceeding three million won; whereas the purport of the provision is that “the person who illegally uses the digital signature creating key beyond the scope or usage of the authorized digital signature creating key” and “the act of causing another person to arbitrarily obtain the authorized certificate under the name of another person or to prevent the transfer or lease of the authorized certificate to another person,” and that “the act of allowing another person to arbitrarily obtain the authorized certificate under the name of another person or to prevent the issuance of the authorized certificate,” is prohibited or to be interpreted as a fine not exceeding one year.

However, according to the above facts, Defendant 3 or Nonindicted 1 and Nonindicted 2 obtained an authorized certificate under the name of each company with the consent or delegation from Defendant 2, 3, and 4. Thus, at the time of the issuance of each of the instant authorized certificates, Defendant 2, 3, and 4 managed and controlled the digital signature creating key with respect to each of their respective businesses as their representative.

Therefore, Defendant 1, 2, 3, and 4 cannot be punished pursuant to Article 31 subparag. 3 and Article 23(2) of the Digital Signature Act (excluding the representatives of each company). (In relation to the remaining Defendants, excluding the representatives of each company, the authorized certificate in the name of each company may be deemed an authorized certificate in the name of another person, and even if there is a competitive relationship between Defendant 1, 2, 3, and 4, it shall not be viewed differently), there is no other evidence to acknowledge the facts charged.

Therefore, the judgment of the court below which differs from this conclusion is erroneous in the misunderstanding of facts or misunderstanding of legal principles, which affected the conclusion of the judgment, and therefore the defendants' appeal on this part is justified.

(3) Determination as to interference with bidding among the facts charged in the instant case

(A) Summary of the facts charged

In the event of participation in the electronic bid of the "Bater" managed by the Public Procurement Service, the bidding shall not be conducted in the name of another company or in duplicate with regard to the same public notice.

Defendant 1 was awarded construction works worth KRW 352,620,251 in the name of Defendant 5 Co., Ltd. in the name of Defendant 5 Co., Ltd., from the above date to September 7, 2007, by using an authorized certificate issued by another person in the name of ○○ system, ○○tech and ○○ Information Technology Co., Ltd., in the electronic bid for the “business of building DB computerized at the time of Gyeongsan Asset Management” managed by the Public Procurement Service. Defendant 5 participated in the electronic bid for the “business of building DB at the time of Gyeongsan Asset Management” which was ordered by the Public Procurement Service. Defendant 1 was awarded a successful bid for construction works worth KRW 352,620,251 in the name of Defendant 5 Co., Ltd. from the above date to September 7, 2007, using the authorized certificate issued by another person over a total of 10 times in total.

As a result, Defendant 1 interfered with the fairness of electronic tendering "Bater" managed by the Public Procurement Service.

(B) The judgment of the court below

Based on the evidence submitted by the prosecutor, the lower court found all Defendants guilty of violating the Digital Signature Act.

(C) Judgment of the court below s

1) Standards for establishment of interference with bidding

The crime of interference with tendering is established when it harms the fairness of bidding by means of a deceptive scheme, threat of force, or other means. Here, “act detrimental to fairness of bidding” does not require the actual appearance of the result. Here, “act detrimental to fairness of bidding” means the act of causing a situation where fair competition is likely to be impeded, that is, it includes not only the act of pricing but also the act of impairing fair competition. It does not necessarily mean that collusion between bidding participants should be conducted between all bidding participants for the purpose of interfering with bidding. It does not necessarily mean that collusion should be conducted between all bidding participants. Even if collusion is conducted only among some bidding participants, so long as it damages the fairness of bidding (see, e.g., Supreme Court Decision 2004Do2581, Dec. 22, 2006). It does not mean that interference with bidding should be subject to punishment of 200 persons who jointly participate in bidding to a certain person as a successful tenderer and thus, it does not harm the fair bid price’s 9.3rd competition without any specific price or more (see, 18.

2) As to the attached administration Nos. 1, 2, 4, and 8

According to the above facts, even if Defendant 1 agreed with each of Defendant 2, 3, and 4, the representatives of ○○ system, ○○tech, and ○○ Information Technology Co., Ltd., such as the attached bid details, and if the bid price was awarded, Defendant 5 Co., Ltd., thereby undermining the "reasonable and fair competition method" of conducting all of the construction works, even if the bid price was awarded, whether each of the above bidding acts constitutes a interference with bidding is likely to harm the fairness of bidding due to the above bidding. Thus, it does not change even if each of the above companies on the part of Defendant 1 was awarded the bid.

However, in light of the number of participating companies that participated in bidding 1, 2, 4, or 8 of the attached bidding details, even if Defendant 1 failed to bid after having agreed on the price with Defendant 2, 3, and 4, each representative of the ○○ system, ○○tech, and ○ Information Technology Co., Ltd., Defendant 1, even if having agreed on the price, it is difficult to view that there was an unfair influence on the reasonable price formation through fair competition, and there is no other evidence to support that each bid was detrimental to the fairness of each bidding.

Therefore, this part shall be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act, and the judgment of the court below which differs from this conclusion shall be erroneous in the misunderstanding of legal principles, which affected the conclusion of the judgment. Therefore, the appeal by Defendant 1 is justified.

3) As to the attached table Nos. 3, 9, and 10

In the case of the above 3 and 9, the total number of the bidding enterprises is two, which are all Defendant 1's side. In the case of the 10 details of the bidding, the bidding enterprises are two bidding enterprises or Defendant 1's side enterprises, and the number of the bidding enterprises causes unfair influence on the adequate price formation through fair competition, and thus, Defendant 1's act of this part constitutes a crime of interference with bidding.

Therefore, the judgment of the court below with the same conclusion is just, and it cannot be said that there is an error of law that affected the conclusion of the judgment by misunderstanding the facts, and therefore there is no reason to discuss this part of appeal by

B. Scope of reversal

Of the facts charged in this case against Defendant 1, the part Nos. 1, 2, 4 through 8 of the attached papers among the facts charged in this case and the part on the attached papers Nos. 1, 2, 4 through 8 of the attached papers are concurrent crimes with the remaining part under the former part of Article 37 of the Criminal Act. As seen earlier, as long as the judgment of the court below against Defendant 1 is reversed by not guilty of the violation of the Digital Signature Act and the part on the attached papers No. 1, 2, 4

3. Conclusion

Therefore, the appeal by Defendant 2, 3, 4, and Defendant 5 is well-grounded, and the appeal by Defendant 1 on the violation of the Digital Signature Act and the violation of the attached papers Nos. 1, 2, 4, and 8 among the appeal by Defendant 1 is with merit. Thus, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

In the event of participation in the electronic bid of the "Bater" managed by the Public Procurement Service, the bidding shall not be conducted in the name of another company or in duplicate with regard to the same public notice.

Defendant 1 was awarded construction works worth KRW 13,912,300 in the name of Defendant 5 Co., Ltd. with Defendant 5 Co., Ltd. at the office of Defendant 5 Co., Ltd. located in Suwon-si Transferdong (hereinafter omitted) around June 2, 2006; Defendant 5 took part in the electronic bid for “business of building DB video works for the 3rd Cinematographic Video Works in Gyeonggi-do” managed by Gyeonggi-do; Defendant 5 Co., Ltd. by using an authorized certificate issued in the name of another person in the name of the ○ Information Technology Co., Ltd., which was issued in the same manner as that of the above 2. A. 2.a. (2) and received a successful bid for construction works worth KRW 13,912,300 in the name of Defendant 5 Co., Ltd. from the above date to September 7, 2007, using the authorized certificate issued by another person three times in total as shown in the list of crimes.

As a result, Defendant 1 interfered with the fairness of electronic tendering "Bater" managed by the Public Procurement Service.

Since the judgment of the court below is the same as the corresponding column of the judgment, it shall be quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Defendant 1: Article 315 of the Criminal Act

1. Aggravation for concurrent crimes;

Defendant 1: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the aggravation of concurrent crimes with punishment determined by the obstruction of tender by April 9, 2007, which is the largest sentence for a crime)

1. Invitation of a workhouse;

Defendant 1: Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Defendant 1: Article 334(1) of the Criminal Procedure Act

Although Defendant 1 had conditions for sentencing favorable to the above Defendant, such as the primary offender, it is true that the above Defendant has been awarded a contract for construction work equivalent to KRW 338,217,100 over three occasions, and obstructed the fairness of electronic bidding by the Public Procurement Service, which is managed by the Public Procurement Service, and the nature of the crime is not less and less. In full view of all the sentencing conditions specified in the records and arguments of this case, the sentence like the disposition was determined.

1. The charge of violating the Digital Signature Act

The facts charged as to this part of the facts charged are the same as the above 2. A. (2) of the above 2.A., and since the facts charged as to this part of the facts charged should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act, the defendants shall be pronounced not guilty.

2. The point of interfering with bidding of the attached papers Nos. 1, 2, 4 through 8 among the facts charged against Defendant 1

Of the facts charged against Defendant 1, the summary of the interference with bidding is as described in the above 2. A. (3) Item (A), and the point of interference with bidding in the attached bidding Nos. 1, 2, 4 through 8 among them is as stated in the above 2.1 Item (a) Item (3) shall be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. Thus, the judgment of not guilty as to the interference with bidding in the attached bidding Nos. 1, 2, 4 through 8 among the facts charged against Defendant 1.

[The details of issuance of the certificate of the attached Form, details of bid, and omission of the list of crimes]

Judges in writing (Presiding Judge)