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(영문) 서울고등법원 2017.03.09 2016노3099
특정경제범죄가중처벌등에관한법률위반(사기)등
Text

All appeals by the Defendants are dismissed.

Reasons

The main point of the grounds for appeal is that Defendant C is erroneous and misunderstanding the legal principles, the Defendant entered into a contract for the supply of printed matters with the Public Procurement Service and the procuring entity under a normal and several contract, and did not deceive the public official or staff

In addition, according to Article 9(1) of the Act on the Promotion of the Purchase of Small and Medium Enterprises and the Assistance to the Market for Small and Medium Enterprises and Article 10(1) of the Enforcement Decree of the same Act, the conclusion of a contract with a number of less than ten million won does not require small and medium enterprises to produce directly.

According to Article 28(2)1 of the former Enforcement Decree of the Welfare of Persons with Disabilities Act (wholly amended by Presidential Decree No. 20323, Oct. 15, 2007), where welfare facilities for persons with disabilities or welfare organizations for persons with disabilities provide a subcontract or entrust the production to other enterprises, etc., the welfare facilities for persons with disabilities or welfare organizations for persons with disabilities do not need to directly participate in the final production process of the relevant goods. As such, in cases of a contract with less than KRW 10 million among the supply contracts for printed materials concluded by the defendant, even if the defendant does not directly produce, it is possible to conclude a number of contracts even if the defendant does not directly produce, and even if the former Enforcement Decree of the Welfare of Persons with Disabilities Act applies to a number of contracts for the supply of printed materials, it does not need to meet the requirements for direct production under Article 28(2)1 of the above

Therefore, the defendant awarded a subcontract to another company as to a contract for the supply of printed materials as stated in the judgment below.

Even if a public official or employee in charge was accused;

shall not be deemed to exist.

The punishment sentenced by the court below against the defendant (one year and four months of imprisonment, two years of suspended execution) is too unreasonable.

Defendant

D. The defendant was operated by mistake of facts

V Business was actually operated by the J Association, an incorporated association (hereinafter “instant Association”), and the Defendant is receiving wages.

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