Defendant 1 and 69

Defendants

Kim Sung-mun

Attorney Shin Tae-young, Counsel for the defendant-appellant

Seoul Central District Court Decision 2007 High Court Decision 4599 Decided January 18, 2008

The judgment of the court below is reversed.

The Defendants are not guilty.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

(1) As to the violation of the Framework Act on the Construction Industry

Article 95 subparagraph 2 of the Framework Act on the Construction Industry is limited to the "contractor who runs a construction business after making a registration under the Framework Act on the Construction Industry" and thus, even if the non-indicted who does not have been registered as the constructor acts on behalf of the defendants, it does not constitute a violation of the Framework Act on the Construction Industry even if the non-indicted makes a bid on behalf of the defendants, and the non-indicted merely makes the defendants submit a quotation on behalf of the defendants and thus it cannot be seen as "the submission of another constructor's estimate" under the Framework Act on the Construction Industry. Thus, this part of the facts charged is applicable to a case where the defendants conspired with the non-indicted in collusion with the non-indicted and caused the non-indicted to commit a violation of the Framework Act on the Construction Industry. In addition, since the defendants or the non-indicted did not recognize that his act was illegal, the intent of the violation of the Framework Act on the Construction Industry

(2) As to the violation of the Digital Signature Act

Although the Defendants’ allowing the Nonindicted Party to use the Defendant’s authorized certificate by proxy does not constitute “loan” prohibited by the Digital Signature Act, the lower court convicted the Defendants of this part of the facts charged, which erred by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

B. Unreasonable sentencing

Considering all circumstances, such as the circumstance in which the Defendants made a tender to the Nonindicted Party on behalf of the Defendants, or the fact that there is no profit acquired therefrom, the lower court’s punishment (each fine of KRW 5 million) is too unreasonable.

2. Summary of the facts charged in this case and the judgment of the court below

A. Summary of the facts charged

(1) The representative director or the actual representative of each company of the defendant (hereinafter referred to as the "representative of the defendant") may not submit the estimate of another constructor in bidding for construction works in collusion with the non-indicted, etc., but he may lend an authorized certificate to the employees of the (trade name omitted) operated by the non-indicted, by delivering related documents so that he/she may obtain an authorized certificate for electronic bidding in the name of the defendant, and then, he/she may submit the other constructor's estimate in lieu of the defendant's company when he/she calls for an government-funded construction project conducted by the Public Procurement

No person may transfer or lend an authorized certificate to another person for the purpose of the exercise, but the person lends the authorized certificate in the above manner so that he/she can exercise the authorized certificate through government-funded electronic tendering conducted by the Public Procurement Service, etc.;

(2) Each of the Defendant Company was the representative of each of the above Defendant Company, and the representative of each of the above Defendant Company committed such a violation with regard to its duties.

B. The judgment of the court below

The court below found the Defendants guilty of all the charges and sentenced the Defendants to a fine of KRW 5 million, respectively, by taking full account of the macro-written evidence.

3. The judgment of this Court

A. Determination on the Framework Act on the Construction Industry

Article 95 of the Framework Act on the Construction Industry provides that "any person who commits an act falling under any of the following subparagraphs shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 50 million won," and subparagraph 2 provides that "any person who submits an estimate of another constructor" shall be punished. In full view of the purpose of the Framework Act on the Construction Industry to promote the proper execution of construction works and the sound development of the construction industry and the legislative intent and statutory punishment under the above provision, etc. of the same provision, it is also known in the law that "other constructors" under the same subparagraph or in the provisions of subparagraphs 1 and 3 of the same Article that are in a parallel relation with the other constructors, and thus, the special provision under Article 315 of the Criminal Act that provides for the obstruction of bidding as it is intended to specially punish the constructors who engage in an act that harms the fairness of bidding in a construction project, and Article 315 of the Framework Act on the Construction Industry (see Supreme Court Decision 201Do2423, Nov. 30, 2001).

According to the records, the non-indicted is acknowledged that (trade name omitted) is a personal business registration and operates an indoor interior decoration, but the non-indicted was not a constructor who has completed registration under the Framework Act on the Construction Industry, and that the non-indicted was aware of the relevant license in the government-funded electronic tendering procedure conducted by the Public Procurement Service, etc. through the website of the Public Procurement Service and recommended the non-indicted to pay the fee if the contract is awarded, and the non-indicted would act as an agent for the electronic tendering procedure by posting a telephone. The fact that the non-indicted has obtained an authorized certificate from the construction company and received an electronic bid in the name of the construction company, and if the contract is awarded, the non-indicted would have received a fee of about 3-7% of the relevant successful bid amount from the construction company.

Therefore, the Defendants merely allowed the Nonindicted Party, other than the registered constructor, to submit his estimation while making a tender for construction works on behalf of the Nonindicted Party, and cannot be deemed as having the Nonindicted Party submitted the estimation of the other party as the constructor, and there is no other evidence to acknowledge this otherwise (a separate theory that even if there is an entry of the estimates in the name of several Defendants or representatives at the same time in the electronic tendering procedure conducted by the Nonindicted Party, it is necessary to enact and regulate a separate statute, if so, it cannot be concluded as an act detrimental to the fairness of the tender in the bidding of construction works, and even if the Nonindicted Party, other than the constructor, can be processed as an accomplice, it cannot be punished as long as the Defendant submitted his quotation. Accordingly, this part of the facts charged that the Defendants in collusion with the Nonindicted Party did not constitute a crime or did not prove a criminal fact, and thus, the Defendants’ assertion should be pronounced not guilty pursuant to Article 325 of the Criminal Procedure Act.

B. Judgment on the violation of the Digital Signature Act

Article 23(5) of the Digital Signature Act provides that “No person shall transfer or borrow an authorized certificate to or from another person for the purpose of having another person exercise the authorized certificate.” Article 23(5) provides that “No person shall transfer or lease the authorized certificate to or from another person for the purpose of having another person exercise it.” Article 32 Subparag. 4 provides that a person shall be punished by imprisonment for not more

As such, the purpose of the Digital Signature Act prohibiting the transfer or lending of an authorized certificate is to prevent the misunderstanding of the other party by using or using the authorized certificate of another person voluntarily as his/her own, thereby preventing the abuse of the authorized certificate with an unfair intent.

Therefore, as seen earlier, the Defendants permitted the Nonindicted Party to use an authorized certificate only within the necessary scope by acting as an electronic bidding agent, and if the purpose of such use and the economic and legal effects therefrom were to be attributed to the Defendants themselves, the Defendants cannot be deemed to have lent the authorized certificate to the Nonindicted Party for the purpose of having the Nonindicted Party exercise the authorized certificate, and there is no evidence to deem otherwise to have lent it for the said purpose.

Therefore, since this part of the facts charged also does not constitute a crime or there is no proof of a criminal fact, it should be pronounced not guilty pursuant to Article 325 of the Criminal Procedure Act, the defendants' assertion on this part of the facts charged is with merit.

C. Sub-decision

Therefore, the judgment of the court below which found the Defendant guilty of the facts charged of this case constitutes a case where the facts charged of this case are not a crime or there is no proof of a crime, is erroneous in the misapprehension of legal principles, which affected the conclusion of the judgment.

4. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, since the defendants' appeal is well-grounded, and the following decision is rendered again after pleading.

The summary of the facts charged of this case is as stated in Paragraph 2-A. As seen in Paragraph 3 above, since the facts charged of this case does not constitute a crime or there is no proof of a crime, it is so decided as per Disposition with the decision of not guilty under Article 325 of the Criminal Procedure Act.

Judges Noh Sung (Presiding Judge)