2010Do7949 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

1. A;

2. B

Prosecutor (Defendants)

C. Law Firm

Attorney D, AB, AC (for the defendant)

Seoul High Court Decision 2009No3102 Decided June 4, 2010

June 27, 2013

The portion of the lower judgment’s acquittal against the Defendants is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Judgment of innocence by the court below

The summary of the charge on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) to the Defendants is not only that “E” (hereinafter referred to as “E”) failed to meet the qualification requirements for the good procurement system, but also that the above signal, etc. is regularly supplied through the Public Procurement Service after concluding a unit price contract for a third party with respect to the good procurement system, which is recognized as an excellent procurement system with the Public Procurement Service, but also that the above signal, etc. is not provided through the Public Procurement Service, the EE-D traffic signal, etc. at the time of the application for the good procurement product was not provided with specific land layout technology at the Public Procurement Service, and the E-D traffic signal, etc. at around September 10, 207 meet the requirements for the recognition of good procurement system, and the E-D traffic signal, etc. at the time of application for the good procurement product, etc. was entered into with the Public Procurement Service 300% of the unit price contract for the third party at the request of the Public Procurement Service 301.7.208.

According to the reasoning of the judgment below, the court below found the defendants guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes even if the defendants deceiving the defendants to the public procurement agency as to the supply of traffic signals, etc. to which the above e-mail technology applies together with the e-mail arrangement technology, in light of the circumstances such as the fact that the defendants explain e-mail traffic signals, etc. with the meat arrangements as the target product in the product specifications of the unit price contract for a third party which the public procurement agency entered into with the public procurement agency, and that only the e-mail arrangement technology was anticipated to have been supplied with the products implemented as stated in the above product specifications, etc., the court below found the defendants guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the judgment of the court below which found the defendants not guilty of the defect in the process of selecting the e-mail procurement product of this case is a separate system in terms of its subject, object and method, and the defect in the process of selecting the e-mail procurement product of this case.

Judgment of the Supreme Court

The deception as a requirement for fraud refers to any affirmative or passive act that generally assumes the fiduciary duty and good faith to each other in a property transaction. It does not necessarily require that the deception is a major part of a juristic act, and it is sufficient if it is about the basis of a judgment that makes an actor take a disposition of property which the other party wishes by omitting the other party into mistake. Whether a certain act constitutes deception that the other party misleads another person shall be determined generally and objectively by taking into account the situation of the transaction, the other party’s knowledge, experience, occupation, and other specific circumstances at the time of the act (see, e.g., Supreme Court Decision 2005Do1991, Oct. 25, 2007). In addition, in a crime of fraud, the acquisition of property, the delivery of property by deception, in itself, if there is a delivery of property by deception, thereby establishing the crime of fraud, and even if there is no considerable consideration or damage to the whole victim’s property (see, e.g., Supreme Court Decision 200Do325, Mar. 24, 195).

According to the reasoning of the lower judgment and the evidence duly admitted by the lower court, the Defendants received a letter of recognition from the Korea Industrial Technology Association in exclusive charge of research and development by submitting false documents, photographs, etc., using it, and issued a certificate of performance certification from the Administrator of the Small and Medium Business Administration, and again submit an application for the certification of performance to the Public Procurement Service, which is an excellent procurement product accompanied by the said letter of performance certification, to the Public Procurement Service, and the E’s traffic signal, etc. was selected as an excellent product. However, Article 3 of the Regulations on the Selection and Management of Outstanding Products (hereinafter “products”), which is produced by small and medium enterprises and venture businesses by applying a patent registered by the Administrator of the Small and Medium Business Administration pursuant to the Patent Act, provides that the products

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

As above, insofar as the Defendants deceptioned the Public Procurement Service to select E’s transport signal, etc. as good goods, and accordingly concluded a unit price contract for a third party and received the price for the goods, fraud with the Public Procurement Service is established. Even if the transportation signal, etc. supplied by the Defendants to an end-user institution complies with the standards and quality standards stipulated by the National Police Agency, fraud does not affect the establishment of fraud.

Nevertheless, the court below erred by misapprehending the legal principles on deception and causation in fraud and thereby adversely affecting the conclusion of the judgment, on the grounds that it is difficult to recognize the Defendants’ deception on the above facts charged, or that there is no causation between the Defendants’ deception and the victim’s property damage. The ground of appeal assigning this error is with merit.

3. Scope of reversal

The facts of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) against Defendant A, which the lower court found guilty, are concurrent crimes under the former part of Article 37 of the Criminal Act, respectively. Since only the Prosecutor appealed to the acquittal portion, the above guilty portion was separated and finalized. Accordingly, the lower court’s judgment should be reversed only for the acquittal portion.

4. Conclusion

Therefore, the non-guilty portion of the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding Justice Yang Chang-soo

Parkdaedae

The Chief Justice Park Jae-young

Justices Kim Jae-tae