[1] The meaning of "loan" under Article 23 (5) of the Digital Signature Act which prohibits the transfer or lending of an authorized certificate

[2] In a case where Gap, other than a constructor, entered into an agreement with a constructor to pay a fee to the other party after receiving a successful bid for construction work in his/her name, and obtained a constructor's authorized certificate and puts on an electronic tender, the case holding that the act of the constructor constitutes "loan of an authorized certificate prohibited by the Digital Signature Act"

[1] 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 it.” In light of the legislative intent of the Digital Signature Act with the aim of ensuring the safety and reliability of electronic documents, “loan” means allowing another person to use the authorized certificate in the same position as that of the nominal owner without managing and supervising the nominal owner, so that the electronic document in the name of the nominal owner may be prepared by using it in the same manner as that of the nominal owner.

[2] In a case where Gap, other than a constructor, entered into an agreement with a constructor to pay a fee to the other party, and obtained an authorized certificate from a constructor and puts into an electronic bidding, the case holding that Gap's act of allowing the other party to use an authorized certificate constitutes "loan of an authorized certificate" prohibited by the Digital Signature Act, on the ground that Gap's act does not constitute a mere bidding agent in light of the fact that Gap decided the construction work and bid price to be tendered in writing without notifying the constructor and offered a bid and renewed the authorized certificate, etc.

[1] Article 23 (5) of the Digital Signature Act / [2] Article 23 (5) of the Digital Signature Act

Defendant 1 and 69 others

Prosecutor

Law Firm Chuncheon, Attorney Shin Tae-young

Seoul Central District Court Decision 2008No404 decided May 20, 2008 (Separation)

The part of the judgment of the court below against the defendants 1, 2, 4 through 17, 56, 57, 61, and 62 are reversed, and this part of the case is remanded to the Panel Division of the Seoul Central District Court. The part on the violation of the Framework Act on the Construction Industry against the above defendants and the appeal against the remaining defendants are dismissed.

The grounds of appeal are examined.

1. As to the violation of the Framework Act on the Construction Industry

Article 95 of the Framework Act on the Construction Industry provides that a person who commits an act falling under any of the following subparagraphs in bidding of construction works 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 for promoting the proper execution of construction works and the sound development of the construction industry and the legislative purport under which the above penal provision is established, it is also known in the legislative text of the same subparagraph or the provisions of subparagraphs 1 and 3 of the same Article, which are in a parallel relationship with the other constructor, to specially punish the constructors who engage in an act detrimental to the fairness of bidding in bidding of construction works, and Article 315 of the Criminal Act which provides for the obstruction of bidding, and Article 2 subparagraph 5 of the Framework Act on the Construction Industry provides that "any constructor" means any person who runs a construction business after registration pursuant to the Framework Act on the Construction Industry or other Acts and subordinate statutes (see, e.g., Supreme Court Decision 200Do23736, Nov. 27, 2000.

In full view of the selected evidence, the court below found that the non-indicted is a person (trade name omitted) who was registered as an individual entrepreneur and operated the interior fishery business, but does not correspond to the constructor who completed the registration under the Framework Act on the Construction Industry, and that the defendants (the person who is not a principal agent of joint penal provisions and expressed a common name without distinguishing the offender and the juristic person, and the person who is a principal agent of joint penal provisions; hereinafter the same shall apply in paragraph (1)) obtained each authorized certificate and agreed to act as an agent in the name of each constructor and receive a commission for the execution of an electronic bid under the name of each constructor. The court below reversed the judgment of the first instance which found the defendants guilty of this part of the facts charged on the ground that the defendants had the non-indicted, who is not the registered constructor, submit his estimate by proxy,

However, according to the records of this case, the non-indicted did not merely act on behalf of the defendants, but rather it appears that the non-indicted led the bidding for his own interest with an authorized certificate leased from the defendants. Thus, the judgment of the court below that the non-indicted was merely an act on behalf of the defendants, is somewhat inappropriate in this regard, but as long as the non-indicted is not a constructor prescribed in the above provision, it is reasonable to deem that the defendants' act of requiring the non-indicted to submit only an estimate related to each company does not constitute "the act of submitting an estimate of another constructor" as provided in Article 95 subparagraph 2 of the Framework Act on the Construction Industry. Accordingly, the judgment of the court below does not err in the misapprehension of legal principles

2. As to the violation of the Digital Signature Act

The court below reversed the judgment of the court of first instance which found the Defendants guilty on this part of the charges, on the ground that the Defendants (which was prosecuted for violating the Digital Signature Act, limited to the Defendants who were charged with the violation of the Digital Signature Act, and referred to as a common name without distinguishing the offender and the corporation as the main agent of joint penal provisions, and which was referred to in paragraph (2)) permitted the Nonindicted Party to use an authorized certificate only within the necessary scope in carrying out an electronic bidding on behalf of the Nonindicted Party, and that it allowed the Defendants to use an authorized certificate only within the scope of their business purposes, and thus, it did not

However, this decision of the court below is not acceptable.

Article 23(5) of the Digital Signature Act provides that no person may transfer or borrow an authorized certificate to another person for the purpose of allowing another person to exercise the authorized certificate. In light of the legislative intent of the Digital Signature Act for the purpose of ensuring the safety and reliability of electronic documents, the term “loan” in this context means allowing another person to use the authorized certificate in the same position as that of the nominal owner without managing and supervising the nominal owner, so that the electronic document in the name of the nominal owner may be prepared.

According to the records of this case, if the non-indicted 1 was awarded a contract under the name of the constructor who is represented by the non-indicted 1 in the name of the representative between the majority of the constructors, the non-indicted 1 paid the non-indicted 5% or more of the contract amount to the non-indicted 1 at his own expense when the non-indicted 1 was awarded a contract for the construction work at the non-indicted 1's option. When the non-indicted 1 executes the construction work in the form of subcontracting, the non-indicted 5% or less of the contract amount to the non-indicted 5% of the contract amount. The non-indicted 1 agreed to divide the awarded construction work without specifying the specific contents between some constructors. The non-indicted 1 tried to directly work because it is more possible for the non-indicted 1 to give the construction work to the constructor who is the owner of the electronic bidding and receive the fees for the construction work, and the non-indicted 1 loaned the authorized certificate to the non-indicted 1 at his own expense, and it is more reasonable for the defendants to have no knowledge of the contract or renewal of the electronic certificate.

Nevertheless, the court below found the Defendants not guilty of violating the Digital Signature Act. The court below erred by misapprehending the legal principles on the lending of authorized certificates, etc., which affected the conclusion of the judgment, and the grounds of appeal assigning this error are with merit.

3. Conclusion

Therefore, the part of the judgment of the court below against Defendant 1, 2, 4 through 17, 56, 57, 61, and 62 regarding the violation of the Digital Signature Act is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The violation of the Framework Act on the Construction Industry and the remaining defendants' appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)