The case holding that it does not constitute a crime of interference with business by fraudulent means where the president of a local public corporation has fabricated the results of an applicant who applied for an employment examination for new staff at the request of the president of the local public corporation, or employed new staff by means of making the age requirement changed after receiving an application for the applicant who does not meet the age requirements.

In a case where the president of a local government-invested public corporation manipulates the results of an applicant applying for an employment examination for new employees at the request of the president of the local government-invested public corporation, or hires new employees by means of changing the age requirements after receiving an application for an applicant who does not meet the age requirements, the case holding that the duties of new employees of the public corporation not only are the duties of the public corporation, but also the duties of the defendant, which are not the duties of the public corporation, but also the duties of the public corporation, but also are the duties of the public corporation, and there is no other party who mispers,

Article 314(1) of the Criminal Act; Article 63 of the former Local Public Enterprises Act (amended by Act No. 6665 of March 25, 2002)

Defendant

Prosecutor

E-Councils

Attorney Kim Sung-sung

Seoul Central District Court Decision 2003Da10290 Delivered on November 11, 2004

The prosecutor's appeal is dismissed.

1. Summary of the prosecutor's grounds for appeal;

According to the Defendant’s instruction, Nonindicted 2’s statement in the investigative agency and court of the court below that Nonindicted 1 passed the Nonindicted 1 by manipulating the examination result of Nonindicted 1’s examination, is reliable, and the appointment of contracting staff cannot be deemed to be the exclusive authority of the president. Therefore, it is inappropriate for the Defendant to change the appointment qualification of Nonindicted 8 at the time of employment. Accordingly, Nonindicted 8’s expanded interpretation of business relevance in the disbursement of entertainment expenses is unreasonable. However, even though it can be found that the Defendant was guilty of all the facts charged in the instant case, the lower court acquitted the Defendant of the facts,

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

A. Summary of the facts charged in this case

The summary of the facts charged in this case is as follows:

[Defendants serve as Minister of Agriculture and Forestry from February 1993 to December 1993, the Minister of Agriculture and Forestry, and the Minister of Agriculture and Forestry, from October 1, 1998 to March 17, 2003, shall be the president of the Agricultural and Fishery Products Corporation, who shall exercise overall control over the affairs of the said Corporation;

1. On October 199, Non-Indicted 1, 199, Non-Indicted 2 came to open to the public by Non-Indicted 3, Non-Indicted 1's request to pass his own supporters' association at the same time, Non-Indicted 2's instruction to re-examine Non-Indicted 1's result of the written examination from Non-Indicted 2 on November 15, 199 that Non-Indicted 1's result is outside of the right of passing the written examination, Non-Indicted 2's request to re-examine Non-Indicted 3's result of Non-Indicted 4's request to pass the 6's new examination number at the same time, Non-Indicted 1's new examination number at the same time, Non-Indicted 1's new examination number at the same time (Non-Indicted 2's new examination number at the same time, Non-Indicted 1's new examination number at 7's new examination number at the same time, Non-Indicted 1's new examination number at 10's general examination number 9'.

2. As to the employment of one secretary on December 1, 199, who is a professional contract worker, on or after January 1, 1970, the court decided to restrict the age of application for the recruitment of professional contract workers as the child born at the age of 30 (the age of 30,000) and announced the recruitment of professional contract workers on the Korean daily newspaper according to the internal rules. Nonindicted 8, who is his father at the university and college, did not reach the age of 30 June 30, 1969, in collusion with Nonindicted 2 to accept the application and change the qualification requirement so that he can pass the interview in the office of the general affairs team on January 11, 200 to pass the qualification of Nonindicted 8. According to the examination results and interview plan for professional contract workers who changed his qualification to a child born at the age of 30 after January 1, 1969, the defendant approved the recruitment of specialized contract workers by the new document and interview plan for Nonindicted 8, thereby hindering the above qualification of the Corporation through a fraudulent method.

3. On March 8, 1999, Nonindicted 2 instructed Nonindicted 2 to raise funds to use for the actual operation expenses of the president, it is inevitable to raise funds by issuing a false statement of expenses or a false sales slips, etc., upon receiving a report. Nonindicted 2 instructed Nonindicted 9, a general team manager, etc. to use it for the actual operation expenses of the president. Nonindicted 2 instructed Nonindicted 2,50,000 won to receive KRW 2,298,000 from the 15th anniversary anniversary of the establishment of April 1999, and executed it at the expense of the event and remaining 64 times in total, by using Nonindicted 22,607,50 won in total, and managing it for his duties on a separate basis on May 8, 199, by using Nonindicted 2,000 won as an individual embezzlement of KRW 10,000,000,0000 for up to 1,260,000 won in total, and 16,008,00.

B. The judgment of the court below

As to paragraph (1) of the facts charged, the lower court determined that: ① Nonindicted 2 changed his statement in the investigation process as to whether Nonindicted 3 was directly instructed by the Defendant to pass Nonindicted 1; ② Nonindicted 2 stated that he first heard from the Defendant that he had a way to do so on or after the end of October 199; but Nonindicted 5 stated that he first sent such speech to Nonindicted 5 on November 15, 1999, on the following day; ③ Nonindicted 2, Nonindicted 5, and Nonindicted 6 did not have received special compensation from the Defendant for the above sexual manipulation; ② Nonindicted 5 did not necessarily have been subject to the Defendant’s comprehensive direction for the recruitment of the Defendant, based on the fact that it was difficult to recognize that there was no change in the concept of the Defendant’s eligibility to participate in the above work and the fact that Nonindicted 2, Nonindicted 5, and Nonindicted 6 had been subject to the Defendant’s comprehensive direction for the recruitment of the Defendant, based on the fact that it was difficult to recognize that there was no change in the content of the government-invested program.

3. Judgment of party members

A. Facts of recognition

According to the records, the following facts are recognized.

(1) The Seoul Special Metropolitan City Agricultural and Fishery Products Corporation (hereinafter referred to as the "Corporation") was established as a corporation on April 10, 1984 with the aim of contributing to the stability of people's lives by facilitating the distribution of agricultural and fishery products and supplying them to the Seoul Special Metropolitan City Agricultural and Fishery Products in accordance with the Local Public Enterprises Act, the Act on Distribution and Price Stabilization of Agricultural and Fishery Products, and the Ordinance on the Establishment and Operation of Agricultural and Fishery Products Corporation.

(2) The Defendant was the president from October 1, 1998 to March 17, 2003; Nonindicted Party 2 from March 2, 1999 to February 28, 2002; Nonindicted Party 5 from June 1, 1996 to December 31, 1999; Nonindicted Party 6 from June 1, 1996 to September 7, 200; Nonindicted Party 11 from January 3, 200 to February 24, 2002 to the president; Nonindicted Party 4 from October 13, 1998 to February 28, 2002 to the head of the labor-management team; the head of the labor-management team; and the head of the labor-management team; and the head of the labor-management team; and the general affairs of the labor-management team; and the general affairs of the labor-management team.

(3) On October 19, 199, Nonindicted 5 proposed a new employment plan to employ a new employee of the Corporation, and obtained the approval of Nonindicted 2 and the Defendant, the president of the General Affairs Team, the president of the Corporation. Accordingly, Nonindicted 5 supported the general administration department of class VI of the Corporation scheduled to employ 13 employees.

(4) At the time, Nonindicted 12, the mother of Nonindicted 1, was a member of Nonindicted 3’s supporters’ association at the National Assembly at the time, who was the chairman of the National Agriculture and Fisheries Committee, and asked Nonindicted 1, who was the child, to find Nonindicted 3, to find employment in the Corporation. Nonindicted 3 asked the Defendant to the effect that Nonindicted 1, who was the employee of the Corporation, should be employed as the employee of the Corporation on October 199, and the Defendant told Nonindicted 2, among the applicants for the employment examination, to the effect that he should have Nonindicted 1, among the applicants for the employment examination.

(5) On November 14, 199, the Corporation conducted a written test on November 14, 199, and as a result, Nonindicted Party 1 received 70 points from a general ceremony and did not included in the total number of 13 persons to be employed in the 24th order. Nonindicted Party 2 reported the above results to the Defendant on November 15, 199, the following day, and the Defendant instructed Nonindicted Party 2 to the effect that Nonindicted Party 1 passed Nonindicted Party 1. Nonindicted Party 2 instructed Nonindicted Party 5 and Nonindicted 6 to devise a method for Nonindicted Party 1 to pass the written test at the general team office at around 21:00 on the same day, Nonindicted Party 2, Nonindicted 5, and Nonindicted 6, as indicated in the facts charged, obtained a total of 17 points of the written test answer (O.CR card) and the written test number of the applicant, and the result of Nonindicted Party 2’s score marking in the order of the applicant’s final answer, the result of Nonindicted Party 1’s score in the written test.

(6) On November 16, 1999, Non-Indicted 5 and Non-Indicted 6 proposed a plan to conduct the employment interview and oral examination for employees attached to the list of persons who passed the written examination, which was written in order according to the above forged results, and obtained approval in sequence from Non-Indicted 2 and Defendant, and Non-Indicted 1 was employed by the Corporation through interview.

(7) In addition, on December 27, 1999, Nonindicted 5 proposed a plan to employ contract employees including one contract officer who is a specialized contract officer, and obtained approval from Nonindicted 2 and Defendant in sequential order. Accordingly, on December 29, 199, publicly announced the recruitment of contract employees on December 29, 199. The content of the plan is to limit the qualification for applying for the employment of contract employees to those who were born after January 1, 1970, and to select the successful applicants through the first document screening and the second interview examination.

(8) On January 5, 200, the contract staff’s receipt period of the application, Nonindicted 2 received Nonindicted 8’s application form from Nonindicted 11, who was an applicant for the private post who was directed by the Defendant through Nonindicted 4, who was the chief secretary of the secretary general. Nonindicted 11, who reviewed the application form, was unable to receive the application form due to Nonindicted 2’s age exceeded the age of the birth on June 30, 1969, and Nonindicted 2 reported the contents thereof to the Defendant. Nonindicted 2, who received the Defendant’s order from Nonindicted 2, was included in Nonindicted 8’s interview, and the Defendant, Nonindicted 2, and 11, who received the Defendant’s order from Nonindicted 2, included Nonindicted 8’s application for the interview in Nonindicted 8’s list of applicants for the interview, and changed his application form to the Defendant’s full-time interview to the Defendant’s list of applicants for the interview after which Nonindicted 2 changed the Defendant’s qualification to receive the Defendant’s full-time interview.

(9) Meanwhile, in order to raise funds needed to use the business promotion expenses in cash, including the president’s actual operating expenses (the use of cash was prohibited at the time, and the use of the corporate card was obligated), the Defendant instructed Nonindicted 2 to appropriate the business expenses excessively or to raise funds by issuing false invoices or sales slips, and Nonindicted 2 had Nonindicted 9, a general team manager, etc. create KRW 22,60,50 on 64 occasions through the above method, and used KRW 3,61,80 from May 8, 199 to January 26, 2002 as around KRW 10,000,000 for the marriage of women of the president of 10,000 from May 8, 199 to January 26, 2002 (the investigative record No. 21552 to 1554 of the investigative record).

B. Judgment on the defendant's assertion

(1) If Nonindicted 1’s statement was made by Nonindicted 2 by Nonindicted 1 upon Nonindicted 3’s request, the Defendant did not have credibility because the time, frequency, and details of Nonindicted 1’s sexual manipulation were changed from an investigative agency to this court. Nonindicted 3’s request to identify Nonindicted 1’s sexual performance is merely a mere confirmation of Nonindicted 2. However, the following circumstances acknowledged by the above recognition and the record do not coincide with the Nonindicted 2’s investigative agency and the Defendant’s statement up to this court, but it is difficult to accurately memory detailed matters after the passage of the investigation. The core of the instant case is whether the Defendant instructed Nonindicted 2 that Nonindicted 1 would pass the written test, and it is difficult to understand that Nonindicted 1 would not have been aware of the result that Nonindicted 3 would not have passed the written test. In light of the fact that Nonindicted 1 would not have passed the written test and thus, it was difficult to understand that Nonindicted 3 was a witness’s right to know that Nonindicted 1 would not have passed the written test.

(2) In addition, the defendant argued that he decided to employ Nonindicted 8, an outstanding human resources by discussing with Nonindicted 2 and Nonindicted 11, but there is no evidence to acknowledge this. Although Nonindicted 8 was a graduate school graduate, there was an applicant with more career experience than Nonindicted 8 when he graduated from the university and met the age requirements, and in the case of the head of a facility where he was a professional contract, the defendant excluded the first-class person from the age level as a result of the interview. In light of the above, there is no reason for the defendant's assertion.

C. Whether the crime of interference with business by fraudulent means is established

(1) Elements of the crime of interference with business by fraudulent means

The object of the crime of interference with business is another person's business, and the latter person here refers to natural and legal persons other than the offender and non-legal entities (see Supreme Court Decision 98Do663 delivered on January 15, 199). In the crime of interference with business by deceptive means, the crime of interference with business is established by deceptive means if the other party misleads the other party as well as makes use of the land to achieve the purpose of the offender. If the other party commits a wrong act or disposition, the crime of interference with business is established by deceptive means (see Supreme Court Decision 91Do221 delivered on June 9, 192).

(2) Whether a new employee is "other person's business"

According to Article 63 of the former Local Public Enterprises Act (amended by Act No. 6665 of March 25, 2002), employees of the public corporation are appointed or dismissed by the president as prescribed by the articles of incorporation. Article 13 of the Seoul Special Metropolitan City Agricultural and Fishery Products Corporation's Articles of incorporation provides that employees of the public corporation shall be appointed or dismissed by the president, and Article 7 (1) of the Seoul Special Metropolitan City Agricultural and Fishery Products Corporation's Rules on the Management and Operation of Contract Employees of the public corporation shall have the authority to employ all contract employees. Accordingly, according to these provisions, the new employees shall belong to the president, and therefore the new employees shall be the defendant who is the president of the public corporation.

Article 9 and Article 10 of the Personnel Regulations of the Corporation provide that the public prosecutor shall employ a person who has the ability and knowledge to perform his/her duties and can work for the development of the Corporation, and in principle, public employment and special employment shall be made. In principle, public employment shall be made. In principle, public employment shall be conducted through a written examination (or both practical examinations), interview and physical examination, and the examination shall be conducted through a written examination (or both practical examination) through a public notice of recruitment, and the examination shall be conducted through a written examination (or a written examination), interview and physical examination, and the appointment procedure shall be made in the order of grade on the candidate list among the successful candidates who have completed the examination for appointment, and Article 13 of the Personnel Regulations provides that a person who has not worked at the third or lower level at the time of new appointment of an employee shall be regularly appointed through a probation period for three months. In light of the fact that Article 13 of the Personnel Regulations provides that a person who has passed the examination and exercises the authority to appoint a person who has qualifications for appointment and post-election, and the employment examination and the sexual assessment following the examination

However, according to the records, it can be recognized that there are the above provisions as argued by the prosecutor such as the personnel regulations of the Corporation. However, the above provisions merely stipulate specific procedures for the execution of the duties of the president of the Corporation on the premise that the authority to employ new employees belongs to the president of the Corporation. Accordingly, the above duties cannot be viewed as the "other person's duties" in the crime of interference with business, and there is no other evidence to acknowledge the above duties. Thus, the prosecutor's above assertion that the above duties are duties of the Corporation, which is another person, is without merit ( even if the defendant, who is the president of the Corporation, performed the duties of new employees belonging to him/her, by violating the above internal personnel regulations, etc., the rate of the duties of the Corporation as the crime of interference with business as to the crime of interference with business would result in unfairly expanding the scope of the "other person's duties" in the crime of interference with business, and in particular, the authority to employ new employees, such as the case of this case, is granted to the president of the Corporation, but has no authority to establish new employees and operate the Corporation.

(3) Whether a deceptive scheme has been established

In addition, in relation to the crime of interference with business by fraudulent means, as seen earlier, it was established that the other party to the fraudulent scheme committed a wrong act or disposition. In the case of employment of Nonindicted 1, Nonindicted 2, 5, and Nonindicted 6, according to the direction of the defendant, the plan to conduct the employees recruitment interview and oral examination attached to the list of the successful applicants in the written order, which was written according to the results of the manipulation, and which was written by Nonindicted 1, Nonindicted 2, and Nonindicted 6, Nonindicted 2, and Nonindicted 6, the approving authority, and Nonindicted 8, in order with the approval of the defendant. In the case of employment of Nonindicted 8, Nonindicted 2, and Nonindicted 11, according to the direction of the defendant, received the written application of Nonindicted 8, who did not meet the age requirements, and after Nonindicted 8’s written application of Nonindicted 8, Nonindicted 11 changed the age requirements of the professional contract staff recruitment plan and the interview plan, which were written by Nonindicted 2, and Nonindicted 2, the approving authority, and there is no other evidence to recognize that the Defendant’s act or execution.

(4) Conclusion

Therefore, the Defendant’s employment of Nonindicted 1 and Nonindicted 8 as a new employee of the Corporation by the foregoing method is not only the Defendant’s performance of his duties, but also cannot be deemed as a fraudulent act, and thus, the crime of interference with business by deceptive means is not established.

D. Whether the crime of occupational embezzlement is established

On the other hand, as stated in the facts charged in this case, the defendant raised funds by means of cutting off business expenses or issuing false statements or sales slips from among business promotion expenses is irrelevant to the establishment of the crime of occupational embezzlement. According to the guidelines for budget compilation of local public enterprises of the Ministry of Government Administration and Home Affairs, business promotion expenses should be organized as entertainment expenses. For local public enterprises, entertainment expenses are defined as entertainment expenses, school expenses, recompense, and other expenses of a similar nature regardless of the name thereof, which are paid by a corporation in connection with its business. According to the plan for the execution of entertainment expenses of the public corporation, entertainment expenses are widely used as entertainment expenses such as related agencies, name, gift, encouragement of employees, media, media-related, National Assembly, City Council, Si Council, landscape investigation, market development, management evaluation, and distribution consultation. Accordingly, even if the defendant used the business promotion expenses created by the convenience law for the public corporation, it cannot be concluded that the defendant used them for embezzlement for not more than 30 months, and it cannot be concluded that the defendant used them as entertainment expenses for not more than 1080 months.8 months.

4. Conclusion

Therefore, the court below erred by misapprehending some facts, such as that the defendant cannot be deemed to have ordered the non-indicted 2 to pass the non-indicted 1's illegal passing, but all of the facts charged in this case are judged not guilty, and such misunderstanding of facts by the court below cannot be deemed to have affected the conclusion of the judgment. Ultimately, the prosecutor's appeal is groundless, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act.

Judges Choi Jung-hee (Presiding Judge)