Defendant 1 and 5

Defendant 1 and Prosecutor

Kim Yong-ran et al.

Gangnam General Law Firm, Attorneys Lee Gi-soo et al.

Seoul Eastern District Court Decision 2008Dadan278, 375 (Consolidated) Decided May 27, 2008

The judgment of the court below is reversed.

Defendant 1 (Co-defendant 1 of the original judgment of the Supreme Court), Defendant 2 (Defendant 1 of the Supreme Court’s judgment), and Defendant 3 (Defendant 2 of the Supreme Court’s judgment) are punished by a fine of KRW 10,000,000, and Defendant 3 (Defendant 2 of the Supreme Court’s judgment) are punished by a fine of KRW 7,000,000, and Defendant 4 (Defendant 3 of the Supreme Court’s judgment) is punished by a fine of KRW 3,000,000, and Defendant 5 Co-Defendant 4 (Defendant 4 of the Supreme Court’s judgment) is punished by a fine of KRW 20,00,00 and KRW 10,000, respectively.

When Defendant 2, 3, and 4 fail to pay each of the above fines, each of the above Defendants shall be confined in a workhouse for a period calculated by converting 50,000 won into one day.

The number of detention days prior to the pronouncement of the judgment of the court below shall be 19 days included in the above sentence.

Seized 10,000 Doz. 12,200 Doz. (Evidence No. 56 Doz. 4500 of 2008 No. 4500) shall be forfeited from Defendant 1.

63,000,000 won shall be additionally collected from Defendant 1.

Defendant 2, 3, 4, 5, and 6 stock companies are ordered to pay an amount equivalent to the above fines.

1. Summary of grounds for appeal;

(a) Grounds for appeal by a prosecutor;

(1) As to Defendant 1

㈎ 피고인 1은 이 사건 동남권유통단지 이주전문상가 ‘가’블록 건설공사의 설계·시공일괄입찰(일명 턴키입찰) 설계적격심의소위원회 평가위원으로 선정되어 입찰참가업체에서 제출한 설계도서에 대한 설계평가업무에 종사하였다. 따라서 위 피고인은 건설산업기본법(이하 ‘법’이라고만 한다) 제38조의2 에 규정한 ‘이해관계인’ 또는 법 제98조 제2항 의 발주자의 ‘대리인·사용인 기타 종업원’(이하 '사용인'이라고 한다)에 해당한다고 보아야 한다.

㈏ 피고인 1에 대한 원심의 형(징역 1년 2월)은 너무 가벼워서 부당하다.

(2) As to Defendant 2, 3, 4, 5, and 6 corporation

The provision of Article 38-2 of the Act cannot be interpreted as a provision that prohibits the receipt of property or property benefits by illegal solicitation between the ordering person, contractor, subcontractor or interested person, and even in cases where a person who provided property falls under the ordering person, contractor, subcontractor or interested person, as long as the other party falls under the ordering person, subcontractor or interested person, the donor of property, etc. shall be deemed as an act of violating the Framework Act on the Construction Industry

Even if viewed differently from the domestic affairs, since the evaluation committee members are deemed to be the "interested party" under Article 38-2 of the Act or the "employee of the ordering person" under Article 98 (2) of the Act, the above Defendants' offering of property, etc. to Defendant 1, the evaluation committee members, should be deemed to constitute a violation of the Framework Act on the Construction Industry.

B. Grounds for appeal by Defendant 1

The above sentence against the defendant by the court below is too unreasonable.

2. Judgment of party members

(a) Defendant 1, 2, 3, and 4 - Ex officio determination on changes in indictment

Before deciding on the appeal by the prosecutor, the prosecutor applied for changes in indictment and permitted it to the above Defendants twice in the first instance trial as to the violation of the Framework Act on the Construction Industry against the above Defendants. This is based on Article 98(2) of the Act and added charges against Defendant 1, 2, 3, and 4 to Defendant 1, thereby violating the Framework Act on the Construction Industry as to the above Defendants’ violation of the Framework Act on the Construction Industry can no longer be maintained due to changes in the subject of the judgment.

B. Defendant 5 and 6 stock companies

Since the above defendants are found guilty of violating the Framework Act on the Construction Industry against the above defendants' company, the prosecutor's appeal against the above defendants company is justified.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, since there is a ground for ex officio reversal or the prosecutor's appeal is well-grounded, and the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and all of the acquittals on Defendant 1 are found guilty. As such, the convictions on the judgment of the court below should be judged concurrently as concurrent crimes under the former part of Article 37 of the Criminal Act, and the above convictions

1. Defendant 1 is ○○ Construction and Teaching. Defendant 2 is Defendant 5’s regular director (the head of the redevelopment site in 001). Defendant 3 is the vice head of the Construction Work Headquarters Co., Ltd. (the Construction Work Headquarters Construction ENG Team). Defendant 4 is the head of Nonindicted Co. 1 Co., Ltd. (the Construction Work Headquarters Construction Work Team), and Defendant 5 Co., Ltd and six Co., Ltd are the corporations established for the purpose of construction business, etc.

Defendant 1, who was entrusted by the SH Corporation, was selected on September 19, 2006 by the Seoul Metropolitan Government as the evaluation committee member of the subcommittee on the deliberation on eligibility for design of Gaable Construction (the budget amount of construction KRW 5,65.8 billion) and was engaged in the grading work on the design documents submitted by a tendering company on the same day. Defendant 5, 6, and Nonindicted Co. 1 participated in the bid of Gak, and the bid price of Nonindicted Co. 1 was awarded by Nonindicted Co. 1.

A member of the internship bid evaluation committee shall have the duty to make a fair evaluation when he/she examines and contact with the relevant tendering company in advance to grant points, and the ordering person, contractor, subcontractor or interested person shall not acquire or provide property or property benefits by illegal requests in connection with the conclusion of a contract agreement or the execution of construction works.

A. Defendant 1

(1) Acceptance of 20 million won in cash from Co-defendant 2

Defendant 2 (on September 19, 2006, before September 19, 2006, Defendant 5, a regular director of the company (the head of the Dong-dong Distribution Complex Development Site), made an illegal solicitation on September 12, 2006, before the date of the company's design drawings submitted to the Dong-nam Distribution Complex Bidding Complex. On September 19, 2006, Defendant 2 (the head of the Dong-dong Distribution Complex Development Site Development Site), a regular director of the company (the head of the company at that time) made an illegal solicitation on the proposal submitted by Defendant 5 to the effect that, on September 19, 2006, Defendant 49 (the first half), 07:16 (the message), 07:27 (the message) and 07:27 (the second half of the year of the dong-dong Distribution Complex Development Site Development Project), Defendant 5, a regular director of the company, would be able to make an illegal solicitation on the proposal submitted to Defendant 15.

On November 2006, the Defendant acquired KRW 20 million from Defendant 2 in the name of ○○ University ○○○○ University on the pretext that Defendant 2 was able to see the preference when deliberating on the design drawings in relation to the deliberation of “Blue Construction Project Dok Dok tender,” and at the same time, acquired property from a person who deals with other’s affairs, in response to unlawful solicitation in relation to his duties.

(2) Acceptance of 10 million won in cash from Co-defendant 3

Defendant 3 (Construction ENG Team, Defendant 6, the Vice Minister of Construction, was making an illegal solicitation on September 13, 2006 and September 15, 2006, for Defendant 6’s company design drawings submitted to the Donnam Distribution Complex bid at any time. Defendant 3 (Construction ENG Team), the Vice Minister of Construction, Inc., made an illegal solicitation on September 19, 2006, for Defendant 6’s design proposal submitted by phone to the Donnam Distribution Complex. On September 19, 2006, Defendant 6’s company’s design proposal submitted by phone to the Donnam Distribution Complex Assessment Committee, 06:44, 07:11, 07:16, 07:17, 07:41, 07:45, 07: 07:50, 08:03, which is the date of evaluation.

On January 2007, the Defendant acquired KRW 10 million from Defendant 3 in the name of ○○○ University ○○○○ University on the pretext that Defendant 3 had engaged in the front line when deliberating on the design drawings in relation to the deliberation of the “Gaable Construction Project Doable Dok Dok Dok tender,” and at the same time, acquired property from a person who deals with another’s affairs, in response to illegal solicitation in relation to his duties.

(3) Acceptance of 5 million won merchandise coupons from Co-defendant 4

On September 19, 2006, before September 11, 2006, the evaluation date, when Defendant 4 (the head of the building technology business team at that time) called the Defendant subject to the candidate for the evaluation committee members from time to time, or when advertising the company design drawings submitted to the company design plans to the South-west distribution complex, Defendant 4 (the head of the building technology business team at that time) called the Defendant to be the member of the evaluation committee of the Dongnam Distribution Complex on September 18, 2006, and called the Defendant as the member of the evaluation committee of the Dongnamnam Distribution Complex, Nonindicted Co. 1 made an illegal solicitation that would give a good evaluation on the draft design submitted by Nonindicted Co. 1 on September 19, 19, the day, by calls from the Defendant at around 07:18, 07:21, 07:25, 07:25.

On March 2007, the Defendant acquired 100 won 50,000 won from 10,000 won from the ○○○ University on the pretext of Defendant 4’s deliberation on the design drawings in relation to the deliberation of the 'Blue Dok Construction Project,' by Defendant 4, and acquired property in response to illegal solicitation in relation to his duties as a person who manages another’s affairs.

B. Defendant 2

In relation to the conclusion of a contract or the execution of construction works at a temporary location such as Paragraph (1) above, co-defendant 1, a co-defendant 1, an "employee of the ordering person", provided cash of KRW 20 million by illegal solicitation, and provided property to the evaluation committee managing another's business in return for illegal solicitation.

C. Defendant 3

In relation to the conclusion of a contract or the execution of construction works at a temporary location such as Paragraph (2) above, co-defendant 1, a co-defendant 1,00,000 won in cash with an illegal solicitation, was provided to the evaluation committee managing another's business at the same time and at the same time, property was provided in return for an illegal solicitation.

D. Defendant 4

In relation to the conclusion of a contract or the execution of construction works at a temporary location such as Paragraph (3) above, co-defendant 1, a co-defendant 1, an "employee of the ordering person", granted an amount equivalent to five million won of merchandise coupon by illegal solicitation, and at the same time granted property in return for illegal solicitation to the evaluation committee managing another's business.

E. Defendant 5 Company

Co-defendant 2, who is "employee of the defendant company" at the same time and time as above, provided 20 million won in cash by illegal solicitation to co-defendant 1, who is "employee of the ordering person" in relation to the conclusion of the contract or the execution of construction works as above in connection with the business of the defendant company.

F. Defendant 6 corporation

Co-defendant 3, who is a "employee of the defendant company" at the same time and time as above (2) granted 10 million won in cash by illegal solicitation to co-defendant 1, who is the "employee of the ordering person" in relation to the conclusion of the contract or the execution of construction works as above with respect to the affairs of the defendant company.

2. Defendant 1 is a person who is commissioned from around December 2002 as a preliminary evaluation member of the reconstruction safety diagnosis (preliminary evaluation member) of the Nowon-gu Office and is engaged in the deliberation duties of the safety evaluation council to determine whether to reconstruct the old building. A safety evaluation member has a duty not to receive an illegal request for the evaluation, and he/she shall not acquire the property or property gains by an illegal request.

The defendant led to the deliberation by the head of the deliberation council on safety diagnosis (preliminary assessment) on three occasions from February 28, 2003 to May 17, 2004 with regard to the safety diagnosis applied by the association promotion committee for offset-based in Seoul Special Metropolitan City, Nowon-gu. On February 28, 2003, the decision of use of remuneration (safety diagnosis) was made on February 28, 2003, the decision of deferment was made on April 2, 2004, and the reconstruction was made on May 17, 2004.

A. Receipt of KRW 100 million in cash from Nonindicted 2

The non-indicted 2 made an illegal solicitation that, as the non-indicted 3 (the vice-director of the company, the defendant 5 company, and the vice-director of the company, the head of the company, the head of the company, the head of the company, the head of the company, the head of the company, the head of the company, the head of the company, the head of the company, the head of the company, the head of the company, the head of the company, the head of the company, the head of the company, the head of the company, the head of the company, the head of the company, the head of the company, the head of which

On June 2004, the Defendant received KRW 100 million in cash under the name of the 100 million in the name of the ○○ University of ○○ University, on the ground that Nonindicted Party 2 passed a safety inspection in relation to the deliberation on safety inspection of the set-off ○ Complex.

B. Receipt of KRW 50 million from Nonindicted 4 in cash

around April 204, Nonindicted 4, who entered into a set-off ○○ Complex Reconstruction Association Promotion Division and a rebuilding design service, was the representative director of the corporation, and the defendant's laboratory located in the ○ University, made an illegal solicitation that the set-off ○ Complex can be passed through the safety inspection. At the same time, Nonindicted 5 and Nonindicted 5 again requested that the defendant be allowed to provide design services only once in the restaurant near the defendant's home office, with Non-Indicted 5.

On June 2004, the Defendant received KRW 50,000,000 in cash, which is contained in the door for travel, on the pretext that Nonindicted 4 passed safety diagnosis from Nonindicted 4 at the apartment parking lot for residential areas, and that it is the party able to do so.

○ Facts No. 1

1. Defendant 1’s oral statement in the original trial

1. The defendant 2, 3, and 4's partial statement in the original trial

1. Each legal statement of Non-Indicted 6 and 7 of the witness of the political party;

1. Each prosecutor's protocol of examination of the suspect against the defendant 1, 2, 3, and 4;

1. Each investigation report (Evidence number 2, 3, 4, 21, 22, 23, 29, 30, 33, 37, 39, 41, 42, 43, 44, 64, 66);

○ Facts in Decision 2

1. Defendant 1’s oral statement in the original trial

1. Copies of the interrogation protocol of Nonindicted 3 by prosecution

1. Each prosecutorial protocol against Nonindicted 3 and 4

1. Each investigation report by the prosecution (Evidence No. 19,20);

1. Records of seizure by prosecution;

1. Article applicable to criminal facts;

(a) Each act listed in the judgment of the court;

㈎ 피고인들 : 각 건설산업기본법 제98조 제2항 , 제95조의2 , 제38조의2

㈏ 피고인 1 : 각 형법 제357조 제1항

㈐ 피고인 2, 3, 4 : 각 형법 제357조 제2항 , 제1항

(b) Each act listed in the judgment No. 2;

Defendant 1: Article 357(1) of the Criminal Act

1. Commercial competition;

Defendants 1, 2, 3, and 4 as stated in the judgment of the court below: Articles 40 and 50 of the Criminal Act

1. Selection of punishment;

A. Defendant 1: Selection of imprisonment

B. Defendant 2, 3, and 4: Selection of each fine

1. Aggravation for concurrent crimes;

Defendant 1: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act

1. Detention in a workhouse;

Defendant 2, 3, and 4: Articles 70 and 69(2) of the Criminal Act

1. Inclusion of days of detention in detention;

Defendant 1: Article 57 of the Criminal Act

1. Confiscation;

Defendant 1: The first sentence of Article 357(3) of the Criminal Act

1. Additional collection:

Defendant 1: The latter part of Article 357(3) of the Criminal Act

1. Order of provisional payment;

Defendant 2, 3, 4, 5 and 6 stock companies: Article 334(1) of the Criminal Procedure Act

1. Status of evaluators under the Framework Act on the Construction Industry;

A. The prosecutor asserts that the evaluation committee members of the standing to design the instant internship bid (hereinafter “evaluation committee members”) fall under “interested persons” as prescribed by Article 38-2 of the Act, or who are delegated the evaluation of the standing to design by the SH Corporation, the ordering person, and are “employee” as prescribed by Article 98(2) of the Act.

In this regard, a party member judged that an appraiser is a "employee of SH Corporation" who is the ordering person, and the grounds are as follows.

B. Whether the person constitutes an interested party

Article 38-2 of the Act provides that "any ordering person, contractor, subcontractor or interested person shall not acquire or grant any property or property gains by illegal solicitation in connection with the conclusion of a contract or the execution of a construction work," and Article 95-2 of the Act provides that "any person who has acquired or provided property or property gains by illegal solicitation in violation of Article 38-2 shall be punished by imprisonment for not more than five years or by a fine not exceeding 50 million won" is prohibited from receiving money in connection with the orders and execution of a construction work, and the purpose of the provision is to prevent the occurrence of problems such as defective construction, etc. by eradicating irregularities in the number of orders and execution of a construction work and by punishing such violations, and to promote the sound development of the construction industry by punishing such violations. In full view of the purport and language of the provision, interested person related to the conclusion of a contract under Article 38-2 of the Act is limited to a person who has a direct and legal interest in concluding a contract for a construction work or a subcontract (see, e.g., Supreme Court Decision 2008Do298).

C. Whether it falls under "employee"

(1) The meaning of joint penal provisions and "employee"

Article 98(2) of the Act provides, “When a representative of a corporation, or an agent, employee or other servant of a corporation or an individual commits an offence under Articles 94 through 97 in connection with the business of the corporation or the individual, not only shall such offender be punished, but also the corporation or the individual concerned shall be punished by a fine under each relevant Article.”

As such, the penal provisions of Articles 38-2 and 95-2 of the Act limit persons subject to the application to certain business poles, such as ordering person, contractor, subcontractor or interested person, etc. The joint penal provisions of Article 98 of the Act extend the person subject to the application to a person who actually executes the business in order to ensure the effectiveness of the above penal provisions when there is a person who is not a business owner but actually executes the business in question, so that such person commits a violation of the above penal provisions in relation to the performance of the business in question, the joint penal provisions of Article 98 of the Act are deemed to be the penal provisions of the offender so that the person may be punished in accordance with the above joint penal provisions and the penal provisions of the business owner who is the main agent to whom the violation belongs (see Supreme Court en banc Decision 95Do2

Therefore, the term "employee" includes not only a person who has entered into and works for a business owner such as an ordering person and a regular employment contract, but also a person who is under the control and supervision of the corporation in the course of directly or indirectly performing the business of the corporation (Supreme Court Decision 2003Do4966 Decided February 24, 2006). If the business of the corporation is controlled and supervised by the corporation and is managed by the corporation, it constitutes "employee of the business owner" even if the labor contract was entered into with another person (see Supreme Court Decision 93Do3509 delivered on January 12, 1995).

Dozed Facts

According to the above evidence, the following facts are acknowledged.

㈎ SH공사는 이 사건 동남권유통단지 이주전문상가 ‘가’블록 건설공사의 발주자로서 턴키 입찰 및 공사시행을 주관함에 있어 입찰 관련 모든 절차를 SH공사에서 제작·배포한 ‘동남권유통단지 이주전문상가 건설공사 일괄입찰안내서‘에 의하여 진행하였는바, 이 사건 입찰에 있어서 낙찰자 선정을 위한 적격심사는 ① 당해공사수행능력 심사, ② 입찰가격심사, ③ 설계평가로 나누어져 있고, 입찰안내서상 ‘입찰자는 심의 전일까지 평가위원후보(집단) 대상에 대하여 화보, 동영상애니메이션 등 어떠한 형태로든 사전에 자료를 제작, 배포하거나 설명하여서는 아니된다’고 규정되어 있다.

㈏ SH공사는 2006. 8. 2. 위 적격심사 중 설계평가(설계적격심의) 절차를 서울시건설기술심의위원회조례 제7조에 근거하여 서울시에 요청하고(다만, 그에 대한 비용은 모두 SH공사가 부담한다), 서울시설계적격심의소위원회는 위 조례 및 위 조례 시행규칙에 근거하여 평가위원 후보위원 중 평가위원을 선정하였다. (평가위원 후보위원은 일정한 자격요건을 갖춘 공무원 또는 전문가들로서, 그 대상자 명부는 모두 비공개로 되어 있다.)

㈐ 서울시는 설계적격심의가 있기 하루 전에 각 후보위원에 무작위로 고유번호를 부여한 후 입찰업체가 직접 연락순서를 추첨하여 그 연락순서 및 후보명부를 밀봉하였다가, 심의가 있는 당일인 2006. 9. 19. 새벽 6시경에 입찰업체가 입회한 가운데 추첨서류를 개봉한 다음 기술심사담당관이 휴대전화를 사용하여 각 후보들에게 위 추첨된 순서대로 연락하여 그 수락하는 대로 소정의 인원을 채워 평가위원을 선정하였다.

㈑ 서울시 직원은 평가위원들 후보들이 평가위원 선정을 수락하면 즉시 휴대폰의 전원을 차단하여 줄 것을 요청한 후 직접 평가위원의 집으로 찾아가 평가위원을 심의장소로 데리고 갔고(그 직원은 평가위원을 만나자 마자 휴대폰 전원을 즉시 차단하도록 다시 조치를 취하였다), 평가위원들이 08:30경까지 집결장소로 출석하면 입찰참여회사와의 사전 접촉 사실 등 공정한 평가를 할 수 없는 경우 기피 및 제척신청을 하도록 한 후(이 과정에서 평가위원들은 ‘설계평가 심의과정에서의 금품, 향응 등 부당이익 제공 및 수수를 금지하고, 입찰 참여업체 관계자 및 설계참여 기술자와의 개별접촉을 금지하며, 만약 그러한 접촉이 있을 경우 즉시 신고하여야 한다’는 등의 내용이 기재된 청렴서약서를 작성하여 제출하였다) 평가위원을 확정하였으며, 심의과정에 있어서도 철저히 외부와 차단되도록 함은 물론 평가위원들 상호간의 접촉도 엄격히 금지하였다.

㈒ 평가위원들은 그날 오전 10시부터 오후 5시까지 심의장소 현장에서 SH공사 직원들로부터 일괄입찰안내서에 의한 평가방법·기준 및 사업의 개요, 사업의 목표, 토지이용계획, 공사개요, 설계 주요지침 등을 설명들은 후 기술위원회에서 제시한 공통질문항목 및 설계심의토론회의 내용을 토대로 하여, 각 항목(계획성, 시공성, 안전성, 경제성, 환경성, 상권활성화계획)별로 각 입찰 참여업체들에게 차등적으로 점수를 부여하는 방식으로 채점을 한 후 평가사유서를 제출하였는데, 그 재량은 SH공사에서 작성한 일괄입찰안내서 및 SH공사 내규인 일괄입찰 및 대안입찰공사설계적격심의위원회운영내규에 의하여 제한되었고, 이후 평가위원들은 서울시로부터 수당을 지급받았다.

㈓ 피고인 1은 건설관련 분야에 대한 전문지식을 가진 자의 자격으로서 이 사건 턴키입찰의 평가위원으로 선정되었다. 피고인 1은 2006. 9. 19. 새벽 6시경 전화로 선정사실을 통보받고 선정을 수락한 후 위에서 본 각 절차와 방식에 따라 평가위원으로서의 평가업무를 수행하였다.

【Employees’s employees of the SH

Considering the method and procedure of selecting evaluation committee members in the above facts, blocking them from outside before and after the deliberation process, the duty to maintain confidentiality and to apply for challenge of evaluation committee members, the duty to limit discretion in the evaluation work by the evaluation methods, criteria, evaluation work guidelines, etc., the duties entrusted by the SH Corporation and the Seoul Metropolitan Government, the degree of involvement and control in the evaluation process, and the subject of the evaluation result, etc., even though Defendant 1 was commissioned as evaluation committee members by the Seoul Metropolitan Government, it is clear that he has been entrusted with the duties of the SH Corporation, and even if it is only one day, the evaluation duty of the evaluation committee members itself is carried out within a certain limit under the control and supervision of the SH Corporation and the Seoul Metropolitan Government. Thus, Defendant 1, an evaluation committee member, constitutes “employee of the SH Corporation,” who is the employer.

2. Whether a subjective intention for the ordering person is required or a subject of profit reversion is required to be the ordering person;

A. Key issue

In punishing a “employee” who is an offender under the joint penal provision of Article 98(2) of the Act, the prosecutor asserts that “employee” is sufficient to receive money and valuables in connection with the work week, and that the “employee” does not require the business week. This is a separate issue from the requirement that the subject of the benefit of the act of violation is the owner of the act of violation in order to punish corporate employees.

On the other hand, the defense counsel asserts that Defendant 1’s acceptance of money and valuables on behalf of Defendant 1 is not punishable by the joint penal provisions on the premise that “employee” demands the subjective intent of receiving money and valuables for business owner.

B. Determination

(1) As seen above, Article 98(2) of the Act expands a person subject to joint penal provision to a person who actually executes the pertinent business in order to secure effectiveness of the penal provision when the person is not the business owner of the business owner or a person who actually executes the pertinent business, so that such person commits a violation of the said penal provision in connection with the pertinent business performance, it is a penal provision that allows the person to be punished pursuant to the said joint penal provision, and the phrase of the said joint penal provision explicitly states "related to the business" as "related to the business administration," and further, Article 38-2 of the Act prohibits the acquisition of property by illegal solicitation in relation to the conclusion of a contract agreement or construction work, which is a provision that prohibits the acquisition of property by illegal solicitation, unlike the provision that regulates the violation of the prohibition duty incidental to the basic business affairs of the general joint penal provision concerning administrative punishment, it is entirely a provision that prohibits the acquisition of property by a separate contract agreement or construction work, and thus, it cannot be interpreted that the employee has to be subject to the duty of property acquisition at the time of the owner.

Shebly, as in the case of this case, even if Defendant 1 acquired money by illegal solicitation for his own interest, it does not affect the establishment of the crime of violating the Framework Act on the Construction Industry. (The party member is guilty of both the violation of the Framework Act on the Construction Industry and the violation of trust.)

3. The relationship between illegal solicitation and consideration;

A. Key issue

We examine whether there was an illegal solicitation in connection with Defendant 1’s duties, and whether Defendant 1’s acceptance of the instant money and valuables constitutes an illegal solicitation.

As to this, Defendant 2, Defendant 3, and Defendant 4 merely provided explanation and promotional activities for the company’s design to those who are likely to be selected as an evaluation committee member without knowledge of who was designated as an evaluation committee member, which do not constitute an illegal solicitation as provided for in Article 38-2 of the Act and the crime of giving rise to breach of trust. Defendant 1 asserts that, after the lapse of two months from the time of the deliberation on eligibility for design of this case, Defendant 1 received a request for legitimate research service and received cash 20 million won or KRW 10 million as the research service cost, not as a consideration for an illegal solicitation.

B. Determination

(1) Whether there exists an illegal solicitation or not

㈎ 건설산업기본법위반죄 및 배임수증재죄에서 정한 ‘부정한 청탁’이란 그 청탁이 사회상규와 신의성실의 원칙에 반하는 것을 말하며, 이를 판단함에 있어서는 청탁의 내용과 이와 관련되어 교부받거나 공여한 재물의 액수, 형식, 보호법익인 사무처리자의 청렴성 등을 종합적으로 고찰하여야 하되 그 청탁이 반드시 명시적임을 요하는 것은 아니라고 할 것이다.( 대법원 2008. 1. 24. 선고 2006도5711 판결 , 대법원 2007. 9. 6. 선고 2006도3583 판결 등 참조)

㈏ 살피건대, ① 피고인 1은 수사기관 및 원심 법정에서 ‘이 사건 턴키입찰에 참여한 회사의 직원인 피고인 2, 3, 4로부터 설계적격심의 이전부터 수시로 만나 점심을 먹거나 서로 교류를 하면서 설계적격심의 평가시 자기 회사의 설계안에 대한 선처를 부탁한다는 취지의 청탁을 받았으며, 이후 그 사례로 이 사건 각 금품이나 상품권을 수수하였다‘고 자백하였고, 피고인 4도 ’ 공소외 1 주식회사의 직원들이 평가위원 후보자인 피고인 1 등에게 설계적격심의 평가시 위 회사의 설계안에 대한 선처를 부탁한다는 취지의 청탁을 하고, 피고인 1 등이 평가위원으로 선정된 후 위 회사의 설계안에 대하여 높은 점수를 부여해 이 사건 턴키입찰에서 낙찰을 받을 수 있었으므로 그에 대한 사례로 피고인 1 등 평가위원들에게 금품이나 상품권을 지급하였다‘고 진술하였는바, 위 각 진술의 경위 및 구체성 등에 비추어 볼 때 그 진술의 신빙성이 의심되지 아니하는 점, ② 이 사건 턴키입찰 관련 입찰안내서상 ‘입찰자는 심의 전일까지 평가위원후보(집단) 대상에 대하여 화보, 동영상애니메이션 등 어떠한 형태로든 사전에 자료를 제작, 배포하거나 설명하여서는 아니 된다’고 규정되어 있을 뿐만 아니라, 평가위원으로 선정된 자들도 심의 당일 현장에서 입찰자와 사전에 접촉한 사실 등이 있을 경우 이를 신고하게 되어 있는 점, ③ 그럼에도 불구하고 피고인 회사들과 공소외 1 주식회사는 평가위원 후보자들 별로 각 전담직원을 정하고, 그 전담직원들이 심의 전일까지도 수차례 평가위원 후보자들을 만나 설계안에 대한 설명을 하고 선처를 부탁하였을 뿐만 아니라, 이 사건 턴키입찰 설계적격심의 당일 새벽에도 평가위원 후보자들에게 전화를 하여 평가위원으로 선정되었는지를 확인한 후 자신들의 설계안에 좋은 점수를 부여하여 달라는 취지의 청탁을 한 점, ④ 피고인 1은 평가위원이 될 것을 수락한 이후에도 서울시 직원의 안내와 달리 핸드폰 전원을 차단하지 않은 채 서울시 직원이 자택에 도착하기 전까지 피고인 회사들을 비롯한 공소외 1 주식회사 등 건설업체의 임직원들과 통화를 하였으며, 이후 이러한 사전 접촉 사실을 신고하지도 아니한 채 앞서 본 바와 같은 내용의 청렴서약서까지 작성하여 제출한 점, ⑤ 이 사건 턴키입찰과 관련하여 평가위원들의 설계적격심의가 낙찰에 결정적인 영향을 미치는 점, ⑥ 피고인 1이 피고인 2, 3으로부터 용역의 대가를 가장하여 현금을 지급받은 점 등을 종합하여 보면, 피고인 2, 3, 4가 피고인 1에게 이 사건 턴키입찰 설계적격심의 이전부터 심사당일 평가위원 선정통보를 받은 직후까지 지속적·조직적으로 자신들의 회사가 낙찰받을 수 있게 설계안에 좋은 점수를 부여해 달라고 청탁한 것은 입찰의 공정성을 해하는 것으로서 사회상규와 신의성실의 원칙에 반하는 부정한 청탁이라고 할 것이다.

Whether it is a consideration by an illegal solicitation or not

(1) As seen earlier, Defendant 1 made a confession of a violation of the Framework Act on the Construction Industry at the lower court’s trial, and the investigative agency also stated that money and valuables were received in relation to the determination of eligibility for design of the internship. ② Defendant 5 Co., Ltd. prepared a service contract retroactively after Defendant 1 received inspection, but did not prepare a service contract. Defendant 1 prepared a report based on almost 3 to 4 hours’ sample inspection conducted by the field employees of Defendant 5 Co., Ltd. on the basis of almost 1’s safety inspection conducted by the Defendant 5 Co., Ltd.’s request for the payment of money and valuables to Defendant 10 Co., Ltd. on the premise that Defendant 2 did not request the research institute or university for the payment of money and valuables, and Defendant 1 did not request the payment of money and valuables to Defendant 6 Co., Ltd. on the premise that it did not request money and valuables from Defendant 1 to the Defendant’s prosecutor’s office for the first time after the date of the instant construction inspection.

4. Illegal solicitation, timing of accepting money and valuables, and status of evaluators;

A. Key issue

Defendant 1’s acceptance of “illegal solicitation” in the position of the project owner’s “employee” and “a person who administers another’s business,” and whether Defendant 1 can be punished as a violation of the Framework Act on the Construction Industry and a crime of giving or receiving property in breach of trust after Defendant 1 loses his status as an appraiser.

B. Determination

(1) According to the above evidence: (a) Defendant 2, 3, and 4, even before the examination on the eligibility for the design of the instant internship, continued to make a request for good evaluation of the design proposal submitted by the company to an evaluation committee from time to time under the instruction of the company concerned; (b) Defendant 2, 3, and 4, upon receipt of the notice of selection as an evaluation committee member, sent telephone conversations or text messages to Defendant 1 until September 19, 2006; (c) Defendant 1 and Defendant 6, despite the completion of the examination on the eligibility for the design of the instant internship, did not make a request for a fair evaluation of the design proposal by the evaluation committee; (d) Defendant 1 and others were to receive a favorable evaluation of the design proposal by the evaluation committee; and (e) Defendant 1 and others were to receive a favorable evaluation of the design proposal by the evaluation committee at 00 hours before the commencement of the said evaluation committee; and (e) Defendant 1 and others were to receive a fair evaluation of the design proposal at 00 hours after the evaluation committee.

According to the above facts, Defendant 1 accepted on September 19, 2006 that he would be an evaluation committee member for telephone conversations with a new wall Seoul employee, and thereby acquired the status of “a person who administers the affairs” or “employee” of the SH. Accordingly, Defendant 1 may be deemed to fall under the case where he received an unjust solicitation in the position of “a person who administers another’s affairs” or “employee” as long as he received a solicitation from Defendant 2, 3, and 4 that he would give a high level of points on the draft design submitted by his company by means of telephone communications, text message, etc.

B. In light of the aforementioned legal principles, the crime of taking property or property in breach of trust under Article 357(1) of the Criminal Act is established when a person who administers another’s business obtains property or property benefits in exchange for an unlawful solicitation in connection with his/her duties, and there is a fundamental purport in protecting fairness and sincerity in handling another’s business affairs. Articles 38-2 and 95-2 of the Act prohibit a person ordering, contractor, subcontractor, or interested person from receiving and receiving money in connection with the receipt and performance of construction works, and punish a violation, thereby promoting the sound development of the construction industry by eradicating irregularities in the construction order and construction work (see, e.g., Supreme Court Decision 2008Do2590, Sept. 25, 2008). In light of the crime of taking property in breach of trust and the Framework Act on the Construction Industry, even if all such unlawful solicitation are required to be “a person who administers another’s business” or “a person who is in the nearest position to receive and manage another’s business affairs,” in consideration of “a person who is actually receiving and being subject to receive and manage such unlawful solicitation.”

In full view of the above-mentioned factual relations, Defendant 1 is deemed to have reached the level of performing the duties of an evaluation committee member at least by accepting illegal solicitation with regard to the evaluation duties of an evaluation committee member continuously and systematically from the date of appointment as an evaluation committee member to the immediately preceding the commencement of the duties of the evaluation committee member. This can be evaluated as having received illegal solicitation in the position of “a person who administers another’s business” or “employee” of the client under social norms.

Article 22(1) of the Civil Act provides that “A person who administers another’s business” and “a person who administers another’s business” or “employee” of an ordering person shall be punished by breach of trust or violation of the Framework Act on the Construction Industry if the amount of the property, etc. is received in connection with an unlawful solicitation, even if the property, etc. was received in the status of the person who did not take charge of his duties after the resignation, etc. (see Supreme Court Decision 97Do2042, Oct. 24, 1997).

(1) Defendant 1

In full view of the frequency of the instant crime, the amount acquired, the consideration with illegal solicitation, the circumstances leading to the instant crime, and the circumstances before and after the instant crime, the sentence of imprisonment with prison labor for one year and two months shall be imposed.

Sheshes 2, 3, 4

The sentence of a fine shall be imposed by comprehensively taking into account the various sentencing conditions shown in the instant case, such as the value of money and valuables delivered by the Defendants, motive and background of the commission of the crime, and circumstances

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

Judges Shin Tae-ro (Presiding Judge)