2017Gohap290 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), fraud;

Bribery, Forgery of Private Document, and Uttering of Private Document

A

The largest realization, Kim Jae-at (public trial)

Law Firm B, Attorney C

August 25, 2017

A defendant shall be punished by imprisonment for two years.

Criminal facts

From December 2009 to May 2012, the Defendant operated D Co., Ltd. (hereinafter referred to as “D”) for the purpose of the development, manufacture, sale, etc. of security cameras, closed circuit (CCTV) and video monitoring devices in Goyang-gu E on May 15, 2012, the Defendant established and operated D Co., Ltd. (hereinafter referred to as “D”) for the purpose of developing, manufacturing, and selling security cameras, closed circuit (CCTV) and video monitoring devices.

F is a public official deemed to be a public official in charge of the installation, maintenance, and repair of railroad information and communications facilities, such as the installation of video monitoring equipment, as the head of the Korea Railroad Corporation at Grade III communications team.

1. Bribery;

Korea Railroad Corporation was awarded a successful bid in the amount of KRW 45,859,000 of the construction cost, after reporting the project plan that the Korea Railroad Corporation needs to purchase or install goods from G Electric Service Office (hereinafter referred to as "the instant construction work"), and approving the construction work on November 6, 2012. On November 13, 2012, I Co., Ltd. (hereinafter referred to as "I") was awarded a successful bid in the amount of KRW 455,859,000 of the construction cost. The Defendant subcontracted the instant construction work from I and completed the construction work on December 28, 2012.

On December 3, 2012, the Defendant issued to F, a duty-related person, KRW 5 million at the parking lot of G Electricity Office located in Heung-gu, Chungcheongnam-gu, Chungcheongbuk-gu, Seoul, KRW 3 million at the above parking lot on January 4, 2013, KRW 200,000,000 from "L located in K in Sejong Special Self-Governing City on January 17, 2014," respectively, in consideration of various conveniences from commencement to completion and in relation to other construction works of the Korea Railroad Corporation where F is involved in the future.

Accordingly, the defendant provided a bribe of 10 million won in total with respect to the work of F which is deemed a public official.

2. Forgery of private documents and the display of private documents;

The Defendant planned to import and deliver surveillance camera to be supplied to the instant installation works from China M. However, the Defendant failed to prepare the test report on the waterproof function (IP66) required by the instruction manual of the ordering agency related to the supply of the goods in the process of submitting a plan for performing the instant installation works. As such, the Defendant was willing to forge the plan.

On December 12, 2012, the Defendant stated the model name of PDF file, test results, sexual records number, date of publication in the name of the Director of the Korea Testing Laboratory of Industrial Technology, "IPT-CAM", "IP66, sexual records number", "2012-145-830, and "date of publication" in the name of the Director of the Korea Testing Laboratory of Industrial Technology, which was previously possessed by using the picture screen program.

On December 4, 2012, the Defendant submitted a forged report to the person in charge of the G Electricity office, along with the G Electric Power Team’s execution plan of the instant installation work, at the G Electric Power Team’s office located in Seo-gu Seoul Special Metropolitan City Council.

Accordingly, the defendant, for the purpose of exercising authority, forged one copy of the test report in the name of the Director of the Korea Industrial Technology Examination Institute, which is a private document about the certification of facts, and submitted it to the Korea Railroad Corporation employee who is unaware of such

3. Fraud;

The Defendant submitted a plan to perform the instant construction work under the name of the Director of the Korea Industrial Technology Testing Laboratory, accompanied by the test report under the name of the Director of the Korea Industrial Technology Testing Laboratory that forged as above, and imported 36 NN produced in M in China in December 13, 2012 in 67,493,410 won. On December 18, 2012, the Defendant: (a) completed the performance test on the waterproof function of the Korea Railroad Corporation under the name of the tallyman as if it was a normal product that passed the performance test of the waterproof function; and (b) supplied the Korea Railroad Corporation G Electric Office under the name of the tallyman.

On January 11, 2013, the victim Korea Railroad Corporation remitted 452,943,040 won to the account in the name of the successful bidder, and the defendant who entered into a subcontract agreement was transferred KRW 170,947,125 won to the account in the name of D on December 28, 2012, and KRW 168,031,173 won in total, as of January 15, 2013, to the account in the name of D.

As a result, the Defendant, through I, submitted the test report under the name of the Director of the Korea Industrial Technology Testing Laboratory who was forged through I and supplied a surveillance camera who failed to pass the performance test, thereby allowing the Korea Railroad Corporation to pay 452,943,040 won of the cost of the instant installation work to I.

4. The Small and Medium Business Corporation violated the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) shall operate an investment and financing complex financial support system by examining the competitiveness, growth, feasibility of loans, etc. of the relevant company in order to support the technology development of small and medium enterprises expected to grow up and the mass production system of developed products, and supporting loans at a low interest rate of 1% per annum on the condition that the injured party takes over convertible bonds of the relevant company.

When granting a loan for growth types, the driver shall use the exclusive account and receive external audits from the fiscal year in which the loan date belongs, and submit the statement of loan usage to the victim small and medium enterprise promotion corporation where the loan exceeds KRW 300 million. On the other hand, the representative of the corporation, the change of the largest shareholder, the change of the trade name, the change of the location of the place of business, and other important changes of the corporation shall be reported in writing to the victim small and medium enterprise promotion corporation within one month. The change of the institution dealing with the loan, the change of the support institution, the change of the support institution, the place of the support institution, the succession of the support institution, and the change of the representative shall be approved in advance by the victim, and the victim shall be subject to the approval of the change of the Small and Medium Business Corporation, or shall be subject to the collection of the subsidy in violation of the report and the approval of the change or when using the fund differently

On July 2013, the Defendant stated in the office located in the Gyeonggi-gu Seoul Special Metropolitan City's Gyeonggi-gu Seoul Special Metropolitan City's Gyeonggi-do's business site development plan to the effect that the Defendant is currently developing and supplying ‘0', ‘P', and ‘ Q' in the column of ‘business plan' to the effect that the Defendant was in the process of developing technology for small and medium enterprises' for the last three years, and submitted the plan to the effect that the Defendant: (a) sold the product cost to the market at an amount of 1.5 times compared to the existing product due to the reduction of productionra through investment and the introduction of a large-scale production system; (b) create research human resources and employment with the introduction of a mass production system; (c) from the loans to the victim Small and Medium Business Corporation, the Defendant: (d) purchased the main circuits, such as the Labor Relations Commission, 0 car-type, and high-rate monitoring equipment camera-type nuclear power plant, etc.; and (d) submitted it to the victim by the time of the loan.

However, in relation to the results of technology development, O and P made sampling only and they did not produce and supply them, and Q did not have been commercialized, and there was no commercialization of products. In relation to the business plan, D was responsible for a large amount of debt at the time, and the considerable amount of interest was paid to D at the time, and it was reasonable to pay for the company's operating expenses, such as employee's benefits, factory and office rent, and the amount paid for personal living expenses, and so, it was thought that the loan related thereto was repaid or used for other investment projects.

On September 30, 2013, the Defendant received KRW 600 million from the Victim’s Small and Medium Business Corporation to the account in the name of Corporation D, in relation to the plan to use funds for small and medium enterprises’ policy funds, which was falsely prepared and submitted by the Defendant.

As a result, the defendant acquired 600 million won by deceiving the victim by deceiving the Small and Medium Business Corporation (a type of growth financing).

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of witness R and S;

1. Each prosecutor's protocol of examination of the accused;

1. Some statements in the F prosecutor's protocol of suspect examination;

1. Each prosecutor's statement of R, T, U, and S;

1. Each statement prepared by the defendant and R;

1. An investigation report (in the case of which R is prosecuted for fraud, attached to the indictment, etc.), an investigation report (A, a non-prosecution decision, etc. on R), an investigation report (examination of instructions and specifications of Korean Railroad Corporation), an investigation report (examination of loans), a criminal investigation report, a criminal suspect and other financial transactions tracking results, an investigation report (report on telephone sales status, etc. on staff of the Small and Medium Business Promotion Foundation), an investigation report (report on confirmation of the use of funds for the policies of the Small and Medium Business Corporation), an investigation report (report on confirmation of the companies operating A), an investigation report (report on the use of funds for the policies of the Small and Medium Business Corporation), an investigation report (report on the details of loans), an investigation report (report on the use of funds for the Small and Medium Business Corporation), a report on the use of funds for the Small and Medium Business Corporation (report on the verification of the contents of loans for the Small and Medium Business Corporation), an investigation report (report on the forgery of A private documents and additional statements of fraud), an investigation report (verification of suspect A mobile phone and computer data), an investigation report related to V and installation);

1. Data and guidance data on the website, data on investment and financing complex financial support business of the Small and Medium Business Corporation, data on the certified transcript of corporate register, output of opening results, the aggregate of D tax invoices, the results of the search of patent information of KIPRS, the loan certificates in the name of A and D, the import declaration certificate and remittance-related documents, the details of loan use, the import declaration certificate and transfer-related documents, the guidelines for investment and financing complex financial business of small and medium enterprises, the F personnel record card, the organization map of G

Application of Statutes

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

Articles 133(1) and 129(1) of the Criminal Act (a) of the Criminal Act, Article 231 (a) of the Criminal Act, Article 234, Article 231 (a) of the Criminal Act, Article 234, Article 231 (a) of the Criminal Act, Articles 347(1) and 34(1) of the Criminal Act (a) of the Criminal Act, Articles 347(1) and 34(1) of the Criminal Act (a) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act shall be the penalty concurrent crimes prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with the largest penalty

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (see, e.g., Articles 55(1)3 of the Criminal Act)

Judgment on the argument of the defendant and defense counsel

1. Summary of the defendant's defense counsel's assertion

A. In relation to the crime of fraud in paragraph (3) of the holding, the defendant submitted the test report to the Korea Railroad Corporation (hereinafter referred to as the "victim Corporation") by forging the test report. However, although the test report is not a document required by the Victim Corporation, the defendant submitted the report by mistake even though it is not a document required by the Victim Corporation, and since it is a normal product that passed a performance test on the performance of the discharge and waterproof function of a camera supplied by the defendant to the Victim Corporation, there is no loss to the victim. Therefore,

B. In relation to the criminal facts of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), the content of the plan to use small and medium enterprise policy funds submitted by the defendant to the Victim Small and Medium Business Corporation (hereinafter referred to as the "victim Corporation") is true, and since it has been used for operating expenses of the company, such as employee's benefits, factory rent, office rent, etc. (hereinafter referred to as "green type loan") received from the Victim Corporation, it is not true that it has obtained by deceiving the Victim Corporation by deceiving it.

2. Relevant legal principles

A. The deception as a requirement for fraud refers to all affirmative and passive acts that have a good faith and sincerity to comply with each other in property transaction. It is sufficient to say that it does not necessarily require false indication as to the important part of a juristic act, and it is a basis for judgment for an actor to make a disposition of property which the actor wishes by omitting the other party into mistake (see, e.g., Supreme Court Decision 2003Do7828, Apr. 9, 2004).

B. In a case where, in borrowing money from a third party, the other party did not respond to the original notice regarding the purpose of the borrowed money, and the other party received money by notifying the fact contrary to the truth as to such purpose (see, e.g., Supreme Court Decision 2003Do5382, Sept. 15, 2005).

C. The intent of the crime of defraudation, which is a subjective constituent element of the crime of fraud, shall be determined by comprehensively taking into account the objective circumstances such as the Defendant’s financial history, environment, details of the crime, and the process of performing the transaction before and after the crime unless the Defendant confessions (see, e.g., Supreme Court Decision 2007Do8781, Jan. 18, 200

3. Determination

A. Determination on the crime committed by fraud

1) The following circumstances are acknowledged according to the evidence duly adopted and examined by this Court.

① In order to improve the fact that the cost of maintenance and repair of the existing X section is increased due to the deterioration of the existing X section, and there is a problem in securing safe train operation through the replacement of the above V, the victim corporation conducted the instant installation work to secure safe train operation.

② The direction manual of the victim construction in relation to the instant installation works states that 'environmental' as to 'IP66 (no dust or water infiltration inside the test product)' is included in the direction manual of the victim construction, and 'performance performance by device' as to 'performance performance by device' is stated as 'performance performance by the counter-party to the contract shall be submitted to the inspector under the counter-party's responsibility. On the other hand, according to the above direction manual, the project performance plan is required to be submitted within 3 days after the conclusion of the contract, but the project performance plan does not require to submit the test report within 3 days after the completion of the examination. However, when the completion report is submitted, it is demanded to submit the report within

③ In light of the purpose of the instant installation work, the purport of the Victim Corporation’s request for a test report regarding a surveillance camera, etc. is to prevent any defect that may occur in the future surveillance camera by being supplied only with a prior secured surveillance camera, and to secure a safe train operation. If the test report regarding a surveillance camera supplied to the Victim’s Corporation is forged, it would be difficult to achieve the above purpose, and the same applies to the case where it is proved that the supplied surveillance camera has the performance required in the ex post facto instruction manual.

④ In light of the purpose of the instant installation work and the intent of the Victim’s Corporation to request a test report on surveillance camera, etc., insofar as the Defendant was aware of the time of submission, as long as the Defendant forged and submitted a test report, it would be deemed that the Defendant had an intent to deceiving the Victim Corporation as if such performance had been previously secured.

⑤ Considering the content of the contract on the instant installation work, the entries of the instruction manual, the purpose of the instant installation work, and the weight of the surveillance camera’s possession in V, the test report on the surveillance camera must be submitted at latest at the time of submission of the completion system to guarantee the quality of the surveillance camera supplied. If the victim was aware of the forgery report, it would have not been supplied with the surveillance camera by the Defendant or would not have been paid the price for the instant installation work. The prosecutor also stated to the effect that S in charge of the instant installation work, “if the test report was forged, the supply process should be revoked and suspended.” The contracting department stated to the effect that “It is necessary to cancel the contract or pay a penalty, or to proceed with the process of completing the construction period by selecting another product.”

2) In full view of the above circumstances, the defendant and his defense counsel's assertion to the effect that the crime of fraud is not established or that the defendant and the defendant's defense counsel did not constitute an attempted crime, on the grounds that the defendant was issued a post facto test report on the camera supplied to the victim's corporation or did not incur any damage due to the lack of any defect, on the ground that the defendant's deception was a product that passed a performance test on the waterproof function by submitting a falsified test report to the victim's corporation. On the other hand, in fraud, if there is a delivery of property due to deception, and there is no property damage to the victim (see, e.g., Supreme Court Decision 95Do203, Mar. 24, 1995).

B. Judgment on the crime in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

1) The following circumstances are acknowledged according to the evidence duly adopted and examined by this Court.

① Around July 2013, the Defendant submitted a "plan for the utilization of small and medium enterprise policy funds" to the Victim Agency when applying for a loan for growth type to the Victim Agency. Among them, the Defendant stated that ‘O', ‘P', and ‘ Q are being developed and supplied' in the "performance of technology development" column, and there are three times or more costs in the "Project Plan" column compared to the general camera that makes the existing mass production of ‘Ymeri' in the "Project Plan" column. It is determined that the production cost was reduced by reducing production cost, which can be easily accessible to the market at the time of selling it in the market. While monitoring equipment for the surveillance of the North Korea has a high dependence on external equipment, it can be used in price competitiveness and national security through its own development. The Defendant stated that ‘the creation of human resources and human resources can be used as research and human resources development through the introduction of a mass production system and the development of monitoring equipment for the same type of technology,' and the content of ‘1.5 billion won or more' in the "Project Plan', 4.5 billion won or more.

2. However, unlike the description in the column of "A" technology development, there is no objective data to recognize that the defendant had developed or supplied ‘P', ‘ Q', etc. at the time when he applied for a loan for growth type of factory in this case, and unlike the description in the column of "B business plan" and "the details of the requirements for funds", the defendant seems to have not used a loan for growth type of factory from the victim for the expansion of YAC production called YAC, the self-development of monitoring equipment, the development of monitoring equipment, the development of main circuits, the development of main circuits, the development of high-rate monitoring equipment, and the manufacture of dynamics.

Rather, according to the 'the Details of the use of loans submitted to the Corporation by the defendant after the defendant used a growing type of loan to the Corporation, the defendant paid money in the name of salary to the Z (the mother of the defendant) which appears not to work in D. The amount transferred from the above exclusive account to another account in the name of D was KRW 280,000,000,000, and there is no specific use or explanation as to the considerable portion of the money (the defendant appears to have invested in the business, such as the establishment of Vietnam. However, even if the defendant's investment in the above business is not so, it seems that the defendant not only complies with the purpose of the financing of the growth type of loan, but also it seems that the defendant did not specifically and clearly explain it to the Corporation). From among the money transferred from the growth type of loan exclusive account to the other account in the name of D, the defendant used the above part of the loans for a purpose different from the 'the victim's business plan' or the fund requirement submitted by the defendant.

③ At the time of undergoing an investigation at the prosecution, the Defendant also stated to the effect that “Ymeras parts are purchased and appliances are supplied after external processing. In the case of Rameras, it was sufficient to import and install finished products in China.” “0” at the time of undergoing an investigation at the prosecution twice, “P” was not made and supplied after sampling was developed, but no delivery was made. There was no place for delivery at around 2013. There was an excessive need for the operation of the company as it was too good. It was difficult for the Defendant to think that the Defendant was able to use the Defendant’s business funds, personal living expenses, debts, expenses, etc. with loans from the victim, and that it was difficult for the Defendant to understand the credibility of the Defendant’s suspect interrogation protocol, in light of the following circumstances, including the Defendant’s suspect interrogation protocol that was written at the prosecution’s age, and thus, it could not be understood that it was difficult to understand the credibility of the Defendant’s statement at the time of its appearance in light of its credibility and credibility.

④ In the event that an applicant applies for a loan by growth type, even if the Service determines whether to provide support and the scale thereof by comprehensively evaluating the technical feasibility, business status, and ability to repay based on the relevant company’s financial status and sales through its own review, the basic data for such determination seems not to be sufficient to be based on the data prepared or submitted by the applicant. If the details stated in the “performance of technological development,” “project plan,” and “the details of the requirements for funds” submitted by the Defendant to the injured party are true and not so, the difference in the technology nature, feasibility, etc. of the injured party’s D and if the aforementioned contents are not true, it is highly probable that the growth type loan has not been implemented, and even if not, it seems that at least the injured party has evaluated the amount of the loan disadvantageous to D in determining the size of the loan.

2) In full view of the above circumstances, the Defendant, by submitting a utilization plan for false small and medium enterprise policy funds to the Victim Corporation, by deceiving the Victim Corporation, thereby deceiving the Victim Corporation to obtain a loan from the Victim Corporation.

Reasons for sentencing

1. The scope of punishment by law;

Imprisonment with prison labor for not less than one year and six months, but not more than 22 years and six months;

2. Application of the sentencing criteria;

(a) Bribery;

(a) Determination of type: Type 1 (less than 30 million won) of the offering of a bribe;

(ii) A special person: None of the relevant matters;

(iii) the scope of recommendations: imprisonment with prison labor for not less than four months but not more than ten months (basic areas);

(b) Fraud and violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

(i) Determination of type: General fraud; Type 3 (not less than 500 million won but less than 5 billion won);

(ii) A special person: None of the relevant matters;

(iii) the scope of recommendations: Imprisonment with prison labor for not less than three years but not more than six years (basic areas);

(c) The sum of five months which is 1/2 of the maximum of 10 months of the sentence scope of the crime of offering of a bribe in the maximum of six years of imprisonment with labor for three to six years according to the sentencing guidelines according to the standards for handling multiple crimes, and for six years of fraud and the violation of the Act on the Aggravated Punishment, etc

3. Determination of sentence;

The following circumstances and the defendant's age, health, character and conduct, environment, motive and background of the crime, means and consequence of the crime, and all sentencing factors specified in the trial process of this case, including the circumstances after the crime, shall be determined lower than the lower limit of the sentencing criteria.

The circumstances unfavorable to ○○: The Defendant offered a bribe to the employees of the Victim Corporation who are deemed a public official for solicitation in relation to the instant installation works and the future construction of the Victim Corporation; furthermore, by forging and using the test report on the prevention and waterproof function of a surveillance camera who supplies the instant installation works in connection with the instant installation works, the Defendant actively induced the Victim Corporation, thereby deceiving the Victim Corporation. Furthermore, the Defendant acquired a large amount of loans worth KRW 600 million by deceiving the Corporation by using a plan to utilize small and medium enterprise policy funds partially falsely prepared, and in light of the aforementioned criminal law and the amount of damage, etc., the crime of the instant crime is not good. Nevertheless, the Defendant did not take any measures for the recovery of damage to each Victim.

The favorable circumstances of ○○: The Defendant recognized the offering of a bribe, fabrication of a private document, and the uttering of a falsified investigation document among the instant crimes, and against his mistake. A bribe offered by the Defendant is relatively small, and there seems to have been no convenience such as receiving additional construction after the offering of a bribe. It appears that the surveillance camera supplied by the Defendant in relation to the fraud described in paragraph (3) of the judgment was confirmed that it had the required performance ex post facto, and there seems to have been no financial damage actually suffered by the victim compared to the amount of the fraud stated in the criminal facts until four years have passed since it was established. Moreover, in relation to the commission of a crime in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), the technology development performance, business plan, etc. at the time of the application for a loan, which was based on its actual business, and it seems that only false facts have been written and deceiving, but considerable part of the loans that the Defendant received from the victim appears to have been used for the company’s business, such as general operating expenses, etc., in light of the nature of the type of the growth type of deception.

The presiding judge, judge and presiding judge;

Judges Man-ho

Judges Han Han-chul