(영문) 서울고등법원 2013.8.23. 선고 2013노2171 판결

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

Reasons

1. Scope of the trial;

The judgment of the court prior to the remanding of the defendant A guilty is reversed only for the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) (hereinafter referred to as the "Fraud") against the defendants who were not guilty of the trial prior to the remanding of the case, and the scope of the trial after the remanding of the case is limited to the violation of the Special Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against the defendants who were not guilty of the trial prior to the remand of the case.

2. Grounds for appeal;

A. Defendants

1) misunderstanding of facts and misapprehension of legal principles as to the violation of special law (Fraud)

A) The lower court determined that the products subject to examination of the process of the examination of outstanding procurement products are products subject to the application of crypting technology and crypting technology (the specific contents of each technology are the same as the contents of each week at the fourth bottom of the lower judgment. However, since the performance certification certificate and various test reports are related to products not subject to the application of the technology submitted at the time, this is erroneous, and thus, the conclusion process of the third party unit price contract after the selection of outstanding procurement products cannot be viewed as a separate deceptive act by the Defendants in this process in the instant order. It is difficult to regard the third party unit price contract as a disposal act by the Defendants’ deceptive act, and it is difficult to regard the third party unit price contract as a disposal act by the Defendants’ deceptive act, and the subject who paid the price of the goods is in the demand for the purchase of E LE transport signals, etc. and the lower court erred by clearly misunderstanding the facts

B) Since the entire amount of goods received by the Defendant cannot be considered as the amount of profit of the fraud crime, the fraud crime in this case cannot be punished as a crime of violation of special laws (Fraud) because the amount of profit is not specified, and should be punished as a general crime of fraud.

2) The assertion of unreasonable sentencing

The sentence of the court below to the defendants is too unreasonable.

(b) Prosecutors;

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

3. Determination

The judgment on the grounds of appeal by the Defendants and the Prosecutor is ex officio prior to the judgment on the above grounds of appeal, and as seen earlier, the crime of occupational embezzlement against Defendant A, obstruction of duties, obstruction of the execution of deceptive scheme, obstruction of the performance of duties against Defendant B, obstruction of the performance of duties by deceptive scheme, and obstruction of the performance of duties against Defendant B is determined separately as the guilty part is not appealed by both parties. Since the established conviction part and the violation of the Special Economic Act (Fraud) against the Defendants are in the relation of concurrent crimes under the latter part of Article 37 of the Criminal Act,

However, the defendants' grounds of appeal for misconception of facts and misapprehension of legal principles against the violation of the special law of this case are maintained.

A) With respect to the assertion that there was no deception, etc. in fraud and the grounds for appeal on the confirmation of the victim, deception as a requirement for fraud refers to all affirmative or passive acts that have to be followed by each other in property transactional relations. It does not necessarily require that such deception is an essential part of a juristic act. If it is reasonable to establish the basis for the judgment to allow a perpetrator to perform the act of disposal of property he wishes by omitting the other party into mistake, it shall be determined generally and objectively by taking into account the situation of the transaction, the other party’s knowledge, experience, occupation, etc. at the time of the act (see, e.g., Supreme Court Decision 2005Do1991, Oct. 25, 2007). In the case of fraud, if there is a delivery of property by deception, which is composed of fraud, the infringement of the victim’s property is established by itself, and there is no considerable payment for fraud or any damage to the victim’s property as a whole (see, e.g., Supreme Court Decision 2005Da3945394.

According to the evidence duly adopted and examined by the court below and the trial prior to remand, the defendants received a written recognition of the division of research and development from the Korea Industrial Technology Association by fraudulent means, such as submitting false documents and photographs, using the same, and received performance certification from the Administrator of the Small and Medium Business Administration, and again submit an application for recognition of excellent monthly products attached with the above performance certification to the Public Procurement Service to the Public Procurement Service for the designation of E-transport signal, etc. as excellent products. However, Article 3 of the Regulations on the Selection and Management of Outstanding Products, which is the public notice of the Public Procurement Service, provides that the products produced by small and medium enterprises and venture businesses, which are manufactured by applying the patent registered under the Patent Act, and received performance certification from the Administrator of the Small

Examining these facts in light of the legal principles as seen earlier, the Defendants submitted an application for recognition of good goods by hiding the fact that performance certification certificate issued by the Administrator of the Small and Medium Business Administration was issued unlawfully, thereby deceiving the Public Procurement Service as if they meet the qualification requirements for recognition of good goods. If the Public Procurement Service knew that the letter of performance certification was issued unlawfully, E’s traffic signal, etc. cannot be selected as good goods, etc., and if it did not know that the letter of performance certification was issued unlawfully, it could not be designated as excellent goods, the Defendants did not enter into a unit price contract for E and third parties and did not pay the price of goods. Therefore, there is causation between the Defendants’ deception and the act of the Public Procurement Service concluding a unit price contract for third parties

In addition, as long as the Defendants deceiving the Public Procurement Service to select E’s transport signals, etc. as excellent goods, and accordingly concluded a unit price contract for a third party and received the price of the goods, fraud against the Public Procurement Service is established in itself. Even if the transportation signals, etc. supplied by the Defendants to the Public Procurement Service conforms to the standards and quality standards stipulated by the National Police Agency, fraud does not affect the establishment of fraud.

Therefore, we cannot accept the defendants' grounds for appeal.

B) In the case of fraud involving the deception of property against the reason for appeal on the amount of fraud, if there is a delivery of property by deception, thereby infringing on the victim's property by itself, and even if there was a considerable amount of money or there was no damage to the victim's entire property, the establishment of fraud does not affect the establishment of fraud. Therefore, even in the case of a partial payment of the price in fraud, the amount obtained by deception is not the difference between the value of the property given by the victim and the value of the property, but the whole property received (see, e.g., Supreme Court Decision 200Do1899, Jul. 7, 2000).

Examining the above facts in light of the legal principles as seen earlier, inasmuch as traffic signals, etc. of the Defendants were selected as excellent products by deceiving the victim Public Procurement Service as if they meet the qualification requirements for recognition of good procurement products by submitting an application for recognition of good procurement products with concealment that performance certification certificates issued by the Administrator of the Small and Medium Business Administration issued by the Defendants were illegally issued, and they were supplied with transportation signals, etc. after concluding a unit price contract for E and a third party and supplying transportation signals, etc., and then transferred the price of goods from the victim Public Procurement Service, the

Therefore, we cannot accept the defendants' grounds for appeal.

4. Conclusion

The judgment of the court below is reversed without examining the defendants and the prosecutor's argument on the grounds of ex officio reversal, and it is again decided as follows.

Criminal facts and summary of evidence

The summary of the facts charged and evidence recognized as to the violation of the Special Economic Act (Fraud), which is the object of the judgment of the court, is that the first head of the facts charged in the judgment of the court below, "the defendants were sentenced to two years of suspension of the execution of one year of imprisonment from Seoul High Court on June 4, 2010 to the crime of embezzlement on duty, etc." and the above judgment became final and conclusive on June 12, 2010, and is the same as the corresponding column of the judgment of the court below, and thus, they are cited

Application of Statutes

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

Article 3 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347 (1) and Article 30 of the Criminal Act (with regard to each fraud of the defendants, each of them shall be selected for each limited term)

1. Mitigation of concurrent crimes;

Article 37 (latter part), Articles 39 (1) and 55 (1) 3 and 1. Discretionary mitigation

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

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

Reasons for sentencing

In order to secure a stable market for the instant company's LPE traffic signals, etc. and increase sales by illegal means, the Defendants committed a violation of the Act of the Specific Economic Crimes (Fraud) by deceiving the Public Procurement Service, and the amount of fraud is also high, so not only the nature of the crime but also the Defendants cannot impose any corresponding punishment on the Defendants on the grounds that the Defendants denied the instant crime and do not seriously reflect on the truth. However, Defendant A is the first offender; Defendant B has no criminal history of the same kind of crime; Defendant B has only fines; Defendant B has satisfied the standard guidelines for the PE traffic signals, etc.; ② Each procuring entity that actually received the above traffic signals, etc. has not passed the examination process and received them; furthermore, each procuring entity that received the above traffic signals, etc. installed the above traffic signals, etc.; and even after the commencement of the investigation into the instant case, each of the above procuring entity is determined to the extent that it is difficult to fully receive the goods purchased from the relevant procuring entity or to pay for the traffic signals, etc.; and ③ the motive and performance of the traffic signals, etc.