2012No1131 A. Bribery, b. interference with affairs, c. interference with tendering

1.(a)(c).

A (former Name: G)

2.(b).

B

3.(b).

C

Both parties

Consuling (prosecutions) and a new type of trial

Attorney J, AK, AL, AM (for the defendant)

Seoul Western District Court Decision 201Da2638 Decided September 20, 2012

July 4, 2013

The judgment of the court below is reversed.

Defendant A shall be punished by a fine of 7,00,000 won, by a fine of 1,00,000 won, by a fine of 1,00,000 won, and by a fine of 50,000 won.

If the Defendants did not pay each of the above fines, the Defendants shall be confined in the Labor House for the period calculated by converting each of 50,000 won into one day.

The offering of a bribe among the facts charged against Defendant A is acquitted.

1. Summary of grounds for appeal;

A. The court below found the Defendants not guilty of this part of the facts charged, despite the fact that the Defendants conspired to bid for the selection of a contractor by a district housing redevelopment and rearrangement project association (hereinafter referred to as “I redevelopment partnership”) constitutes a tender under the Criminal Act, and the evidence submitted by the prosecutor sufficiently acknowledged that the Defendants interfered with the tender for the selection of a contractor by offering money and entertainment to its members, and at the same time interfered with the selection of a contractor by offering money and entertainment to its members, and at the same time, interfered with the tender of the redevelopment association.

B. Defendants (in fact-finding or misunderstanding of legal principles, unreasonable sentencing)

1) Part on the crime of interference with business against redevelopment cooperatives by the Defendants

The court below found the Defendants guilty of this part of the facts charged in collusion and did not use a deceptive scheme against the redevelopment cooperative, or did not have a deceptive scheme or intent but erred by misapprehending the legal principles.

2) The offering of bribe by Defendant A

Defendant A provided its members with Busan Port tour for the purpose of public relations prior to the general meeting for the selection of the contractor and did not have any awareness that the travel expenses equivalent to the travel expenses will be granted to the auditor AB of the International Redevelopment Association, and the lower court found Defendant A guilty of this part of the facts charged was erroneous in misapprehending the legal doctrine or misapprehending the legal doctrine.

3) Unreasonable sentencing on the Defendants

The sentence of the lower court against the Defendants (Defendant A: 8 months of imprisonment and 2 years of suspended sentence, Defendant B: fine of 1 million won, Defendant C: fine of 500,000 won) is too unreasonable.

2. Determination as to whether the crime of interference with business against bidding and redevelopment association is established

We examine each case of misconception of facts and misapprehension of legal principles as to the obstruction of bidding by prosecutors and defendants and the obstruction of redevelopment cooperatives.

A. Summary of this part of the facts charged

Defendant A (former G) is a public relations worker who plans and manages orders related to the selection of redevelopment contractors (hereinafter referred to as “one district”) at the 0th KM Construction Co., Ltd. (hereinafter referred to as 'PS Construction Co., Ltd.) at the 10th KM Construction Co., Ltd. (hereinafter referred to as 'PS Construction Co., Ltd.) at the 10th KM Construction Co., Ltd. at the 20th KM Construction Co., Ltd. (hereinafter referred to as 'PS Construction Co., Ltd.) at the 1st KM Construction Co., Ltd., Ltd. (hereinafter referred to as 'PP'), who was dispatched to the above site in order to support the project owners' selection of 1 district JS Construction Co., Ltd. at the 20th KM Construction Co., Ltd., Ltd. at the 20th KM Construction Co., Ltd., Ltd. at the 1st 20th 205th 209.

However, on May 15, 2010, at the general meeting of the members of the association (hereinafter referred to as the "general meeting of the members of the association") to select the contractor, S. Construction and Hyundai Construction participated in the bidding. In total of 827 members, 466 on the day of the on-site voting and 733 persons, including 267 prior absentee voting, were present at the voting and 71 on the basis of the difference in the list of 71.

[Interference with the Defendant’s bid and interference with the Defendant’s business] The Defendant determined that the number of members with the authority to select a contractor could be high, which is a competitor, in the process of planning and preparing a briefing project explanation meeting and promotional travel for its members, could be distinguished from modern construction. Defendant B, in collusion with Defendant B, who is the deputy head of S, N T-representative, and M S, 1 Team of S, N T-representative, and public relations personnel, in an unlawful manner to purchase its members by offering money, goods, or entertainment, etc.

Accordingly, at around 17:00 on May 14, 2010, Defendant C promised to select members V as a contractor for the construction of NA and give a prior vote, and agreed to transfer V to the redevelopment association office and then to prepare cash of KRW 1 million to Defendant B, who is an employee of the company in charge of the company, after going through a prior vote. Defendant B, upon receiving the above contact, immediately delivered the above V with a bag containing KRW 1 million in cash, and delivered it to the above V with a bag containing KRW 1 million in cash ( KRW 50,000, KRW 200). As such, Defendant B purchased the above V as money and sold it as money, and then prepared a lease agreement with the effect that the dwelling space and toilet of the housing in the association area of the above V and the toilet are used as KRW 1 million in cash for two days.

In addition, Defendant A, while holding a business explanation meeting against the above S and the above T prior to the general meeting for the selection of a contractor, directed the members of the company to provide them with such entertainment as special-class hotel meals, lodging, and floating performances. On May 14, 2010, Defendant A provided them with entertainment equivalent to KRW 24,79,375 by providing them with special-class hotel meals and floating numbers to the members and accompanying family members attending a terS construction explanation meeting held for about 500 members and accompanying family members at a X hotel located in Gwangjin-gu Seoul Special Metropolitan City on May 14, 2010.

In addition, Defendant A ordered the above S and the above T to offer entertainment such as the above 0, 59,660 won AA hotel 2,000 Busan AA hotel to its members, and had them enter the above trip to promote SP construction. From May 13, 2010 to May 15, 2010, Defendant A offered the above 40,59,660 won to offer the above hotel accommodation services, tourist destinations, meals, etc., such as Busan Korean War, to the Busan AA hotel 2, and offered to the members of the KTX hotel 40,59,660 won to the members of the redevelopment association for 2,000 won. Accordingly, the Defendants conspired to offer to the members of the redevelopment association with the authority to select the work executor or other members of the redevelopment association in relation to the conclusion of the redevelopment contract for the redevelopment project as above, and provided them with the progress of selecting the work executor or other members of the redevelopment project.

B. The judgment of the court below

The court below ruled that the method of selecting a contractor by the resolution of the general meeting of redevelopment partners is not merely the procedure of selecting a contractor, but rather the procedure of selecting a company which received the support of the largest number of members by advertising the construction cost, project cost, relocation cost and moving expenses of Hyundai Construction and Hyundai Construction, project implementation schedule, project promotion schedule, plans for creating optimal residential environment, various benefits to the members, etc., and thus, it is a process of concluding a contract at will of the association which is selected as a contractor, and thus, it cannot be deemed that the bid of the redevelopment partnership does not constitute a tender as provided for in the obstruction of bidding, unlike the name of the bid, since the bid of the developer of the redevelopment association cannot be deemed to constitute a bid as provided for in the obstruction of bidding, in light of the legal principles that the process of concluding a contract at will by a public and private economic entity's voluntary choice, not the procedure of selecting a contractor.

1) The crime of interference with bidding under Article 315 of the Criminal Act is established by a threat that is established "in a case where the fairness of bidding is harmed by deceptive scheme, threat of force, or any other means, and it does not require that the unfair bidding of the result is practically revealed, and the bidding means the process of selecting a party to a contract who has presented an appropriate price through a series of stages, such as a public notice of bidding, bidding, and the selection of a successful bidder, for the purpose of establishing a reasonable price through fair competition, and does not necessarily mean the process of selecting a successful bidder as a successful bidder. On the other hand, "act detrimental to the fairness of bidding" means the occurrence of a situation where there is an unreasonable influence on the fair price formation through fair competition, that is, the act is not only to determine a price, but also to include acts that undermine legitimate and fair competition methods (see, e.g., Supreme Court Decision 2005Do4898, Jun. 9, 206).

2) Comprehensively taking account of the evidence duly examined by the court below and the trial court, ① Article 12 of the articles of association of the redevelopment association shall be deemed to be a general competitive bidding or a competitive competitive bidding method, and a bidding notice shall be given at least once in a daily newspaper, and participation proposal shall be selected at the general meeting after holding the site site consultations: Provided, That where the bidding is held at least three times on the grounds of non-compliance, etc., a negotiated contract may be concluded by applying mutatis mutandis Article 27 of the Enforcement Decree of the Act on Contracts to Which the State is a Party through the resolution of the general meeting. The same shall apply to the case of changing the selected contractor.). ② A public notice was given on March 18, 2010, and on March 26, 2010, the redevelopment association shall be held on the 20th anniversary of the selection of the contractor, and on March 26, 2010, the bid executor shall comply with the regulations of the Ministry of Land, Transport and Maritime Affairs’s announcement and publicity (attached list).

3) The following circumstances revealed through the evidence revealed in the above facts, namely, ① the redevelopment cooperative selects a contractor through a series of processes, such as a public notice of bidding, site site meetings, constructors’ response, and the selection of successful bidders, ② the redevelopment cooperative, which is the ordering person, presented major items that serve as the basis for the selection of successful bidders; ③ the details of the contract are determined in accordance with the details submitted by the successful bidder; ③ the articles of incorporation of the redevelopment cooperative stipulate that the contractor shall be selected as a method of competitive bidding or selective competitive bidding; ③ the selection of the contractor is decided by the resolution of the general meeting only by means of competitive bidding and s.S. construction, without knowledge of other competitive bidding conditions presented by the other competitive parties; thus, the redevelopment cooperative’s bidding should be deemed as its core elements; and even if the bid is disclosed after the lapse of a certain period of time, it does not change the nature of the contractor’s bidding conditions to the extent that it does not constitute a reasonable method to determine the contractor’s selection in accordance with the agreement between the contractor and the contractor.

4) Article 315 of the Criminal Act provides that "a person who has harmed the fairness of a tender by deceptive means, threat of force, or any other means in the context of interference with a tender." The purport of the above provision is to punish acts that interfere with fair competition and unfairly affect the formation of a reasonable price, thereby promoting fair competition. Therefore, it is reasonable to interpret that the concept includes all acts of "huming the fairness of a tender, regardless of who is against anyone."

According to the evidence duly adopted and examined by the court below and the trial court, the defendants conspired to vote in advance on the condition that the members V should be paid one million won. The defendants held a business explanation meeting against the members prior to the general meeting of the contractor, and provided members with entertainment equivalent to 204,79,375 won in total, such as special-class hotel meals, lodging and well-known performances, etc., and the fact that the members provided members with entertainment equivalent to 40,59,660 won in total on the 23th day of Busan AA hotel hotel 23th day of Busan. The defendants' money and valuables or entertainment, which can be known by the above facts, are distorted or distorted, and the defendants' intent to select the work executor is likely to be distorted or distorted. As such, the defendants' act of offering money and valuables or entertainment to the members prior to the general meeting of the work executor, and there is no error in the misapprehension of legal principles as to misconception of facts against the fairness of the redevelopment association's selection of the work executor.

3. Determination as to whether the crime of interference with business against modern construction is established

A. Summary of the facts charged in this case

The Defendants conspired in collusion, among the above 2. A., with regard to the conclusion of the redevelopment contract for the redevelopment project by the redevelopment cooperative, as in the facts charged from the 3th to the 6th end of the 6th day below the above 2.1, the Defendants prevented the progress in the selection of the above work executor by offering money or entertainment to the members who have the authority to select the work executor, and by having them support the construction of S in the process of at-site voting or in advance absentee voting for the selection of the work executor. At the same time, the Defendants interfere with the selection of the work executor by the redevelopment cooperative

B. The judgment of the court below

The crime of interference with business under Article 314(1) of the Criminal Act is established when a person interferes with another's business by deceptive means or by force. The term "defensive means" means that a person misleads the other party or makes him/her use of land to achieve the purpose of the actor's act (see Supreme Court Decision 2003Do5004, Mar. 25, 2005). On the other hand, in establishing the crime of interference with business, it does not require the result of interference with business, but it is sufficient to cause the risk of interference with business (see Supreme Court Decision 96Do2801, Mar. 11, 1997). According to the records, Hyundai Construction was announced at the general meeting of the members of the International Redevelopment Cooperative by promoting construction cost, etc. and participating in tendering procedures. There is no evidence to deem that the Defendants interfered with the tender of Hyundai Construction by causing misconceptions or sites to the members of the Cooperative, and even if the Defendants were selected at the general meeting of the redevelopment Cooperative's members, it can not be seen as a redevelopment.

C. Judgment of the court below

In the bidding process of this case, the defendants provided members with money and entertainment to the union, so that the union could make the members see the terms and conditions of the land est construction as more favorable than others, or the company was selected through the proper and fair procedure, or the redevelopment association could have caused the risk of undermining the propriety and fairness of the business of selecting the contractor. However, the judgment of the court below which acquitted the Defendants of this part of the facts charged on the ground that there is no evidence to deem that the Defendants had caused mistake, mistake, or the site in the tender information about the tender so that the Defendants interfered with the above bidding business of the modern construction, and there is no error of misunderstanding of facts or misunderstanding of legal principles as pointed out by the prosecutor in the judgment of the court below. Thus, this part of the prosecutor's assertion is without merit.

4. Judgment on the offering of a bribe by Defendant A

A. Summary of this part of the facts charged

From May 13, 2010 to May 15, 2010, Defendant A offered a bribe in relation to the public official’s duties by providing approximately KRW 650,00 won of the above hotel accommodation and spating service using bus prepared in advance and the KTX train arrangement to offer to the company employees of public relations service such as S who received their instructions and to AB who is deemed to be public officials of redevelopment cooperatives through the company’s audit and inspection of redevelopment cooperatives. Defendant A offered a bribe in relation to the duties of the public official.

B. The judgment of the court below

The court below held that a member's accommodation, such as the Busan hotel, was promoted at the general meeting of the members of the I.S., and the remaining events were completed on the day of the general meeting, and the above events were conducted upon the direction of the defendant A.

In light of the above evidence and all the circumstances acknowledged thereby, it was found guilty of this part of the facts charged, on the other hand, that the AB, who is obligated to report to the general meeting when it was found that the management of the property of the partnership and the performance of the business of the partnership were not fair or unjust by the articles of association, was promoted, and that the AB, which was obligated to report to the general meeting of the redevelopment partners, would not be asked to ask questions to the union members.

C. Judgment of the court below

Comprehensively taking account of the evidence duly adopted and examined by the lower court and the trial, ① the general meeting of selecting a contractor was to be held on May 15, 201, and Hyundai Construction and SS Construction decided to hold a meeting to secure competition for members to be selected as a contractor by inserting public relations personnel and holding a project explanation meeting against each member. ② The public relations activities of the SS Construction were conducted as a general advertising agency by MM, and N was ordered by NM to establish a public relations center, participate in an event reservation, etc.; ③ before the opening of the general meeting of selecting a contractor, N was requested to request NM to plan the Busan M to travel from its members; ④ The N made a promise to arrange for the number of members to be 150,000 members for each member of the Busan PS Construction's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's member's participation on the date.

In other words, the following circumstances: (a) AB appears to have been present at the Busan Port trip by his wife’s invitation; (b) the purpose of the trip in Busan is deemed to have been for public relations activities to select a contractor; (c) public relations personnel who recommended the trip may not be deemed to have given special consideration to AB even if he was aware or known that AB was in the position of an auditor; (d) Defendant A planned the trip in Busan Port and ordered an auditor to participate in the trip in Busan Port; (c) there was no participation in the process of selecting the relevant persons; and (d) the auditor could not be aware of whether AB was present at the Busan Port Port; (e) Defendant AB sent the Busan Port Port to the auditor of the Redevelopment Cooperative without charge; and (e) it is reasonable to conclude that, even if there was insufficient evidence to deem that AB participated in the trip to have been offered, it was difficult to conclude that there was a lack of evidence to acknowledge that AB’s participation in the work of the redevelopment Cooperative.

Therefore, although this part of the facts charged should be pronounced not guilty on the ground that there is no proof of the facts charged, the court below convicted the above facts charged. Thus, the court below erred by misapprehending the facts or by misapprehending the legal principles, thereby making it impossible to maintain any further because it did not affect the conclusion of the judgment.

5. Conclusion

Therefore, the prosecutor's appeal against the obstruction of tender among the facts charged in the instant case has merit, and the defendant A's appeal against the offering of bribe is with merit, and therefore, each of the above parts of the judgment below should be reversed. Since the remaining portions of the judgment below which the court below found guilty are in a commercial concurrent relationship with the other parts of the judgment below or there is a concurrent crime under the former part of Article 37 of the Criminal Act, the judgment of the court below should be reversed in its entirety. Thus, without examining the defendants' assertion of unfair sentencing, the judgment of the court below is reversed in its entirety and it is

Criminal facts

The facts constituting the crime are as stated in the above 2. A.

Summary of Evidence

1. The Defendants’ respective legal statements 1.V.’s legal statements in the lower court

1. Each prosecutor's interrogation protocol on Defendants, S,O, AB, Q, T, P, and R

1. Statement by the prosecution against AC;

1. Each police statement made to AD, AE, AF, AG, and AH;

1. Recording records;

1. Application of Acts and subordinate statutes to command internal investigation (influence of a petition, recording and attaching a report (influence of the data submitted by A; recording and attaching data submitted by an AI member's telephone investigation, X hotel hotel, recording and attaching a certified copy of a name tag, document analysis and submission of data, etc.; attaching records and attaching data submitted by N, SPC, document and attachment of document submitted by N, SPC, external investigation, document attached to a performance note, document attached to the fifth representative meeting minutes, and report on the submission of B telephone details);

1. Article applicable to criminal facts;

Article 314(1) of the Criminal Code (the point of interference with business), Article 315 of the Criminal Code (the point of interference with bidding)

1. Commercial competition;

Articles 40 and 50 of each Criminal Act (Joint Interference with Business and Interference with Tender: Punishment provided for in the Act on the Interference with Business with Heavy Punishment)

1. Selection of punishment;

Selection of each fine

1. Detention in a workhouse;

The reason for the sentencing of Articles 70 and 69(2) of the Criminal Act is that the project implemented to improve the residential environment in an area where infrastructure for rearrangement is inferior and aging and bad buildings are concentrated, and many interested parties participate in the project. When related persons such as the constructor engage in public relations activities by offering money, goods, entertainment, etc. against the association members, the conflict between the association members supporting the individual constructor and the market order takes place, and the increase in the construction cost is increased in the future, the additional burden of the association members arises due to the increase in the construction cost in the future. Ultimately, the dispute between the association members, the association members, the constructor, the constructor, the constructor, etc. surrounding the prolonged delay in the project implementation due to the cumulative increase in the expenses for moving expenses of individual association members, the increase in the charges caused by aggravation of business feasibility, the restriction on the property rights of residents and the deterioration of residential environment within the rearrangement zone, the association, the developer of the redevelopment project, has no expertise and financial ability to implement the project in the rearrangement zone, and there is a need to punish the contractor for transparency and fairness.

The crime of this case was committed in collusion with Defendant A and B, an employee of publicity service company, and upon the request of Defendant C, who is the employee of the redevelopment association, to select the executor as the executor of the construction in the process of promoting the case, and provided money and valuables or entertainment to the members of the association for the same reason as mentioned earlier, which prevents the selection of the executor of the redevelopment association. In view of the fact that the nature of the crime was not less complicated, the Defendants should be subject to punishment corresponding to their responsibility.

However, Defendant A and B did not have any other serious criminal records except for punishment as a fine; Defendant C was a primary offender; Defendants C acknowledged objective facts as to the facts charged in this case; Defendants were in a somewhat excessive state of free competition among several construction companies at the time to permit redevelopment construction work; Defendants appears to have reached the instant crime in accordance with the company’s business guidelines; and the Defendants’ age, character and conduct, motive and background of the instant crime, means and consequence of the instant crime, and other circumstances, such as the circumstances after the instant crime, shall be determined as ordered by the order, taking into account various circumstances.

The acquittal portion

1. The summary of the obstruction of the Defendants’ business with respect to the modern construction of modern buildings is as described in Paragraph (1) of the above 3.3.C., and as stated in Paragraph (c) of the above 3.3.3., it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, since it constitutes a case where there is no proof of criminal facts as stated in the above. However, as long as it is found guilty of the obstruction of tender and the obstruction of business against redevelopment partnership, the judgment of innocence is not ordered in accordance

2. The offering of bribe by Defendant A

The summary of the offering of a bribe to Defendant A is the same as the above 4. A. and the above 4.c. as stated in the above 4.c., and thus, it constitutes a case where there is no proof of criminal facts as stated in the above 4.C., and thus, Defendant A is acquitted pursuant to the latter part of

Judge of the presiding judge;

Judges Kim Jae-ho

Judges Hanwon-won