A. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

(b) Occupational embezzlement;

(c) Interference with business;

D. Performance of official duties by fraudulent means

1.(a)(c) A;

2.(c)(d) B

Both parties

Clinical Paths

C Law Firm, Attorney D (for the defendant)

Seoul Southern District Court Decision 2009Gohap185 Decided November 5, 2009

June 4, 2010

The judgment of the court below is reversed.

Defendants shall be punished by imprisonment for one year.

However, the execution of each of the above punishment against the Defendants shall be suspended for two years from the date this judgment became final and conclusive.

Defendant A shall order each community service for 120 hours and 80 hours to Defendant B.

Of the facts charged in this case, each of the defendants' violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (g) shall be acquitted.

1. Summary of grounds for appeal;

A. Defendants

(1) misunderstanding of facts or misapprehension of legal principles

A) With regard to the obstruction of the business of Article 1-A(A) of the judgment of the court below, the Defendants met the physical requirements of the department exclusively in charge of research and development in E Co., Ltd. (hereinafter “E”), and performed continuous research activities. Thus, the Defendants cannot be deemed as a deceptive scheme in the crime of interference with business only with business, with the registration of F as a nominal employee of the above company, who did not work as an actual person exclusively in charge

B) With respect to the obstruction of performance of duties by fraudulent means of Article 1-2(b) of the judgment of the court below, even if there was a defect in the process of issuing performance certification, the defendants' act of submitting the above performance certification certificate to the public official in charge of the performance certification does not constitute a deceptive scheme for the obstruction of performance of duties, and even if it can be seen as a deceptive scheme, the selection of the excellent procurement product is determined not only by performance certification but also by many examiners, and the defendants' act of assistance in the development department is irrelevant to the performance and function of LED traffic signals, etc., so the submission of the defective performance certification certificate cannot be deemed to have caused interference with the issuance of the certificate, which is the excellent procurement product by the Administrator of the Public Procurement Service.

(C) Regarding the violation (Fraud) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter "Special Economic Act"), Article 1-C (A) of the judgment of the court below, the court below determined that the products subject to examination of the process of the process of the examination of excellent procurement products are products applied together with meat arrangement technology and fusing technology (the specific contents of each technology are the same as the contents of each week at the fourth bottom of the judgment below), but it is erroneous that the products are not subject to fusing technology when examining performance certificates and various test results, etc., which were submitted together at the time of the decision of the court below. Since the process of the conclusion of the third party unit price contract after the selection of the excellent procurement product, the third party unit price contract cannot be viewed as a separate deception by the defendants in this process, and it is difficult to regard the third party unit price contract as the disposal act by the defendants, and even though the third party is the main agent who determined whether to purchase E PE transport signals, etc. and paid the price of the goods, the court below erred by clearly misunderstanding the facts of fraud by understanding

In relation to the occupational embezzlement of Article 2 of the judgment below, it is difficult to view that Defendant A used part of F’s benefits in the process of manufacturing a department exclusively dedicated to research and development, and there was a criminal intent of embezzlement.

(2) The assertion of unreasonable sentencing

Even if all domestic defendants are found guilty, in light of all the sentencing conditions, the sentence of the court below (three years of imprisonment, five years of suspended sentence; two years of imprisonment and six years of suspended sentence; five years of suspended sentence) is too unreasonable.

(b) Prosecutors;

The sentence of the lower court against the Defendants is too uneased and unreasonable.

2. Determination

A. As to the defendants' assertion of mistake of facts or misapprehension of legal principles

(1) The following circumstances are acknowledged by the evidence duly adopted and examined by the court below in relation to obstruction of business. ① The Defendants submitted false supporting documents as if they worked as researchers exclusively dedicated to research in the Korea Industrial Technology Association as stated in the judgment below. ② At the time, Defendants submitted research project outlines, research facility specifications, company organization copies, building management ledger or lease contract (use permission), internal drawings (total drawings and internal drawings) of the department exclusively in charge, photographs related to the department exclusively in charge, business registration certificates, and outlines of the department exclusively in charge. At the last time, Defendants were issued with the approval of the department exclusively dedicated to research and development from the Korea Industrial Technology Association, and were issued with the dedicated to research and development of industrial technology by ascertaining the F.F.’s graduation certificate, academic degree certificate, etc. to the dedicated to research and development of industrial technology. ③ The Defendants’ act of not being dedicated to research and development from the dedicated to research and development of industrial technology was no more than 200,000 out of 18,000 out of the documents related to the Association.

(2) According to the evidence duly adopted and examined by the court below and the trial of the court below regarding the obstruction of the performance of official business by fraudulent means, the defendants, although they did not have a department exclusively dedicated to the development of technology, were issued with the approval of the division exclusively dedicated to the promotion of industrial technology by submitting false documents and photographs, using the approval of the division dedicated to the promotion of industrial technology, and the defendants could not receive at least 65 points, which are essential factors in the procedures for issuing performance certification, if they did not have the above approval of the division dedicated to the development of technology (see, e.g., Supreme Court Decision 4041, 4049 of the record). Since the defendants were issued with the certification of the quality of the products by fraudulent means, the defendants' request for the examination of the certification of the quality of the products is not sufficient to obtain the certification of the quality of the products from the Public Procurement Service to the Public Procurement Service, the defendants' request for the issuance of the above products to the Public Procurement Service and the Public Procurement Service 2000-3 of the above approval of the products.

(3) The summary of the facts charged in relation to the violation of special law (Fraud)

E LED transport signal, etc. not only failed to meet the qualification requirements for recognition of good procurement products, but also requested the Government Procurement Service to conclude a unit price contract for a third party for the PE transport signal, etc. recognized as good procurement products through the Government Procurement Service after concluding a unit price contract for the third party, and even if the above signals, etc. are regularly supplied through the Government Procurement Service, despite the absence of the intent or ability to deliver a specific PE transport signal, etc. applied together with the specific PE transport signal, etc. as at the time of application for excellent procurement products, around September 10, 207, around 30 days, the government official of the Government Procurement Service concluded a contract for the supply of the goods to the Government Procurement Service by dividing it into 30 days after receiving the unit price contract for each of the above PE transport signal, etc. with the Government Procurement Service at the time of application for excellent procurement products, and concluded a contract for the supply of the goods to the Government Procurement Service in accordance with the Regulations on Excellent Procurement Products, 2008.

B) Summary of the judgment of the court below

The court below found that the defendants' act of deception on the requirements for the designation of excellent products and the causal link between the damage of the Public Procurement Service caused by the act of deception can be recognized on the grounds that the defendants' act of deception on the requirements for the designation of excellent products and the damage of the Public Procurement Service can be sufficiently recognized, since the defendants' act of deception on the quality product and the causal link can be established on the grounds that the above signals, etc. were applied to the Public Procurement Service in the technical review process as well as the above signals, etc. were falsely stated and explained as if they were applied to the products. The Public Procurement Service entered into a unit price contract for the defendants and third parties in trust that the above signals, etc. will be supplied to the Public Procurement Service, and if the above signals, etc. will be supplied to the Public Procurement Service and the third party at the request for the purchase of the reliable end-user institutions.

C) Determination of the immediate deliberation

However, we cannot agree with the above determination by the court below for the following reasons.

① Of the facts charged in the instant case, the Defendants deceptioned the Public Procurement Service as to whether the ED transport signals, etc. meet the requirements for the recognition of good procurement products and carried out as if they were to deliver the transport signals, etc. to which the PE transport signals, etc. were applied along with the e-mail arrangement technology. As such, it is difficult to recognize the Defendants’ deception in full view of the following circumstances.

(7) According to the unit price contract for a third party with respect to the EES transport signal, etc. of E which the Defendants entered into with the Public Procurement Service (hereinafter the “instant contract”), the goods specifications (the evidence records of 800 pages, hereinafter referred to as the “instant specifications”) regarding the above transport signal, etc., which are part of the contract terms and conditions pursuant to Article 17 of the Additional Terms and Conditions for the Purchase of Goods attached to the above contract shall be explained as the subject goods, and the attached performance certification letter of the Small and Medium Business Administration shall also state “H” as the certified goods, and the attached letter of performance certification shall also state “H” as the subject goods, and there may not be any explicit provisions or phrases to provide the PE transport signal, etc., to which the aforesaid technology is applied.

(L) The "Patent Office or Patent Registration Number I" is indicated in the item of "applicable data and documents" among the present specifications, and even though the above patent technology contains the technology to claim 2, it can be said that the above patent is applied to the above invention. Thus, it is difficult to interpret that the condition that the above indication alone is to deliver the PE transport signals, etc. to which the above technology is applied is included in the contract terms.

(C) In the case of shopping malls in the government procurement office where products can be verified electronically in order to request the purchase of EED traffic signals, etc. according to the contract of this case, it is only possible to think that an end-user institution is supplied with a product that is embodied only in the land layout technology as described in the above specification, even as it is stated in the above specification.

(2) Meanwhile, even if Defendant B explained as if he were to have been applied with any other method than physical arrangement technology in the process of the examination to obtain the recognition of excellent procurement products with respect to the above traffic signals, etc., according to the specifications and performance certification, etc. of the above product, as seen earlier, the fact that the above product is a signal signal, etc. that the Defendants requested to examine is objectively apparent, and whether the above product passed in the examination process is a critical part of the most important technology among the various technologies embodied in the pertinent product. Thus, the existence of only a dependent part of the patent items is not a critical element that can lead to the outcome in the examination. Thus, the above explanation by Defendant B is nothing more than an additional and exaggerated statement to facilitate the increase in traffic signals, etc. in which the above physical arrangement technology applies.

(A) There is no other evidence to deem that there was an agreement between the Defendants and the Public Procurement Service to deliver the ESD traffic signals, etc. to which the PE technology applies.

Therefore, the judgment of the court below that recognized that the defendants deceptioned the Public Procurement Service as if they were to deliver the traffic signals, etc. to which the technology to be applied along with the above arrangement technology is not acceptable.

② Next, as to whether the Defendants deceptioned the Public Procurement Service as if they meet the qualification requirements for the recognition of good procurement products, it is difficult to recognize the causal relationship between the Defendants that the Public Procurement Service caused property damage by entering into the instant contract with the Defendants, even if the Defendants’ deception is acknowledged in light of all the following circumstances, by obtaining the recognition of excellent procurement products from the Korea Industrial Technology Association by unlawful means, such as submitting false documents and photographs. As seen earlier, the Small and Medium Business Administration issued a certificate of performance certification by using the exclusive charge of research and development, and again submitting an application for recognition of excellent procurement products, accompanied by the above performance certification certificate, and thereby submitting the application for recognition of excellent procurement products, thereby obtaining the certificate of good procurement products, which is a good procurement product, from the Public Procurement Service.

(G) First of all, the procedures for the selection of excellent procurement products and the procedures for the conclusion of unit price contracts for third parties are separate systems in terms of their subject, object and method. In other words, the procedures for the selection of excellent procurement products are products manufactured by applying registered patents, and they are subject to performance certification or quality certification under the Promotion of Small and Medium Enterprises and Encouragement of Purchase of Their Products Act (Article 3(2)2-A). The procedures for the examination for the selection are divided into the first examination for quality, etc. and the second examination for the suitability of the procurement products (Article 7 of the above regulations). The first examination is applied to the evaluation of the degree that the applicable technology is applied to the functional parts of the applied product by the Excellent Product Selection Group.

It is divided into the ‘administrative review' and ‘administrative review for evaluating the effects of supporting small and medium enterprises and venture businesses'. The first review is passed only for products whose total horizontal point is not less than 70 points (Article 8 of the above provision), and the second review is to finally select excellent procurement products after undergoing a survey on the actual status of production sites at the Public Procurement Service contract review council, etc. for products that passed the first review. On the other hand, the procedures for concluding unit price contracts for third parties are determined by determining the estimated price based on the price data submitted after reviewing the price data such as manufacturing cost and the contract method, price negotiation date, etc. at the shopping mall shopping mall of the Public Procurement Service (the price negotiations between the bidder and the contracting parties prior to the free contract) and concluding unit price contracts through determining the unit price (see the public prosecutor's statement of M&A belonging to the Public Prosecutor of the Public Procurement Service purchasing Agency).

Evidence records 713 pages)

(L) In particular, a unit price contract for a third party with respect to a good procurement product, such as this case, is separate after being selected as a good procurement product, and if there is a request for a good procurement contract or a request for the purchase by an end-user institution, the department in charge of the purchase will examine the conclusion of the contract in accordance with the contract-related laws and regulations (Articles 16 and 17(1) of the above regulations). As above, insofar as the procedures for the selection of the good procurement product and the unit price contract for a third party are separate procedures, a unit price contract for a third party may not be concluded for the good procurement product (see Article 7(1) of the Enforcement Decree of the Government Procurement Act), but it is not legally or in practice impossible to conclude a unit price contract for a third party with respect to the good procurement product (see Article 7(1) of the Decree of the Government Procurement Products). In addition, the above provision also provides that a third party contract under a unit price contract may not be concluded for the good procurement product if disputes and contract order are anticipated between the good procurement product enterprises (see Article 17(2).).

(c) In the process of issuing the letter of performance certification by the Small and Medium Business Administration, the Defendants used the letter of recognition of a department exclusively in charge of research and development, which was received from the Korea Industrial Technology Association through submitting false documents. However, in the process of submitting an application for recognition of outstanding products with such performance certification to the Public Procurement Service and obtaining the recognition of outstanding products from the Public Procurement Service, the Defendants were selected as excellent products through 1 and 2 examinations through the Good Product Selection Examination Group or the Contract Examination Council within the Public Procurement Service. In order to conclude the instant contract again after being selected as excellent products, the Defendants followed a separate step-by-level request for concluding a unit price contract for a third party to the Public Procurement Service to enter into the instant contract, such defect in the process of issuing the certificate of performance certification cannot be deemed to have affected the conclusion of the instant contract.

(2) Meanwhile, the defect in the process of issuing the above performance certification certificate, that is, the defendants' receipt of the report of the department exclusively in charge of research and development from the Korea Industrial Technology Association through the submission of false data, is merely a procedural defect irrelevant to the performance and quality of PED traffic signals, etc., and the transportation signal, etc. supplied by the defendants to the demanding administrative agencies under the instant contract is in compliance with the standards and quality standards stipulated by the National Police Agency, and there was no particular defect or defect so far. Thus, it cannot be deemed that the Public Procurement Service suffered any property damage due to such procedural defect.

Ultimately, as seen above, the procedure for recognizing excellent procurement products and the procedure for concluding a unit price contract for a third party is applicable to separate procedures, and where the public procurement agency has obtained the recognition of excellent procurement products by fraudulent or other illegal means, it may revoke the recognition of excellent procurement products (Article 22(1)1 of the above Regulation) or may not conclude a third party unit price contract (Article 17(2) of the above Regulation). As long as the public procurement agency concluded the contract in this case following the examination of the documents requesting the contract submitted by the Defendants after examining the documents submitted by the Defendants, it is reasonable to view that the defect in the process of issuing the certificate of performance that was submitted during the examination of excellent procurement products does not succeed to the contract in this case, and therefore, it is difficult to accept the judgment of the court below that recognized causation as to this part.

Radin theory

Therefore, the Defendants deceptioned the Public Procurement Service as if they were to deliver traffic signals, etc. to which he applied with cryptive technology along with cryptive heat technology in the process of concluding the instant contract and its delivery process. However, even if the Defendants deceptioned the Public Procurement Service as if they met the qualification requirements for the recognition of good procurement products, the evidence submitted by the public prosecutor as to the conclusion of the instant contract due to such deception is insufficient to acknowledge it, and there is no other evidence to acknowledge it. Accordingly, the Defendants’ assertion of mistake of facts or misapprehension of legal principles as to the violation of special law (Fraud) is reasonable, and therefore, the Defendants’ assertion of mistake of facts or misapprehension of legal principles as to the violation of the above special law constitutes a case where there is no proof of criminal facts.

(4) The following circumstances acknowledged by evidence duly adopted and examined at the court below (Defendant A) in relation to the occupational embezzlement, namely, ① the process of opening the national bank account as stated in Paragraph (2) of the judgment of the court below in F’s name was made for illegal purposes in the process of prompting the division exclusively responsible for research and development to obtain performance certification by the Small and Medium Business Administration; ② Defendant A used the above money for personal purposes while entirely managing the money deposited in the above national bank account in F’s name; ③ even in so-called one company, the subject of the act and the principal are clearly separate persons and the shareholder of the single company use the company’s funds as the intent of unlawful acquisition (see, e.g., Supreme Court Decision 2005Do5772, Jun. 1, 2007), Defendant A can be sufficiently recognized that there was an intention of unlawful acquisition in the crime of embezzlement. Thus, the above assertion by Defendant A is without merit.

3. Conclusion

Therefore, as seen above, the defendants' appeal on the violation of the Special Economic Act (Fraud) is with merit, and the remaining crimes and the judgment of the court below which rendered a single sentence after treating them as concurrent crimes under the former part of Article 37 of the Criminal Act cannot be maintained in its entirety. Thus, the grounds for appeal on the unfair sentencing of the defendants and the prosecutor are reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and the judgment of the court below is reversed and it is again decided as follows after pleading.

Criminal facts and summary of evidence

The summary of the facts constituting an offense and evidence acknowledged by this court is as follows, except for the deletion of the part of the facts constituting an offense in the judgment below's "Article 1-3 (c)" and the part of the summary of evidence "Article 1-3 (c) at the time of sale" as stated in each corresponding column of the judgment of the court below. Thus,

Application of Statutes

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

A. Defendant A: Articles 314(1), 313, and 30 of the Criminal Act; Articles 137 and 30 of the Criminal Act; Articles 356 and 355(1) of the Criminal Act (the point of occupational embezzlement; the choice of imprisonment)

B. Defendant B: Articles 314(1), 313, and 30 of the Criminal Act (Interference with Business and Selection of Imprisonment) and Articles 137 and 30 of the Criminal Act (the point of obstructing the performance of deceptive schemes and the choice of imprisonment)

1. Aggravation for concurrent crimes;

Articles 37 (former part of Article 37, Article 38 (1) 2, and 50 (in the case of Defendant A, the penalty prescribed in the crime of occupational embezzlement of which punishment is the largest, and the penalty prescribed in the case of Defendant B, the penalty prescribed in the crime of occupational embezzlement of which punishment is the heavier, and the penalty prescribed in the crime of obstruction of the

1. Suspension of execution;

Article 62(1) of each Criminal Code (The following consideration of favorable circumstances among the reasons for sentencing):

1. Social service order;

Article 62-2 of the Criminal Code

Reasons for sentencing

The Defendants committed each crime of interference with the instant business and obstruction of the performance of official business by deceiving the Korea Industrial Technology Promotion Association, the Public Procurement Service, respectively, in order to secure and increase the stable market for the ESD traffic signal, etc. by unlawful means, and thereby, damage the public trust of the Korea Industrial Technology Promotion Association that makes efforts to support the technological development activities of small and medium enterprises, or the Public Procurement Service that implements the system of selecting outstanding procurement products to improve the quality of the procurement commodities, and even if Defendant A embezzled the company’s funds in the case of Defendant A.

On the other hand, as a favorable condition to the Defendants, Defendant A is the first offender, Defendant B is punished by a fine without the same criminal history, Defendant B satisfies the standard guidelines for PED traffic signals, etc. of the National Police Agency, each demanding administrative agency that has been supplied with the above traffic signals, etc. is subject to the pass-up disposition in the course of examination, and each demanding administrative agency that has been supplied with the above traffic signals, etc. was issued with the above traffic signals, and there were no particular problems such as product defects in each demanding administrative agency after installing the above traffic signals, etc., and due to the instant case, E’s traffic signal sales business has been de facto suspended, and other sentencing conditions such as age and position of the Defendants, career, means and method of the crime, and circumstances after the crime are considered.

The acquittal portion

Of the facts charged in the instant case, the summary of the violation of the Special Economic Act (Fraud) is the same as the entry in the open port of Article 2-1(a)(3) above. This constitutes a case where there is no proof of crime as seen in the counter-claim of Article 2-1(a)(3) above, and thus, not guilty under the latter part of Article 325 of

It is so decided as per Disposition for the above reasons.

The assistant judge of the presiding judge;

Judges Gin Il-il

Judges Kim Gin-han