(영문) 서울중앙지방법원 2018.10.5. 선고 2018고합472 판결

Defendant A shall be punished by imprisonment with prison labor for two years, by imprisonment for one year and six months, and by fine for 20,000,000 won for Defendant C.

However, for Defendant A, the execution of the above punishment shall be suspended for three years from the date this judgment became final and conclusive, and for Defendant B, for two years.

Defendant C is ordered to pay the amount equivalent to the above fine.

Reasons

Criminal facts

1. The Defendants’ identity, relevant laws and regulations, and premise facts are as follows: (a) Defendant A is a person operating C (hereinafter referred to as “C”) a corporation that is an importer of clothing manufacture, sale, and import; and (b) Defendant B is the head of G Central Business Headquarters’s clothes business office, an incorporated association located in F in Seo-gu Busan Metropolitan City, Seo-gu.

In principle, when a public institution like the Korea District Heating Corporation (hereinafter referred to as the "victim Corporation") intends to enter into a purchase contract for the provision of various kinds of goods, it shall put into general competitive bidding. However, if it enters into a purchase contract with an organization established for the provision of jobs, etc. to persons with severe disabilities, such as the Association G, it may enter into a free contract by designating the organization concerned. In such cases, the goods supplied must be limited to the goods directly produced by the relevant organization. (1) Nevertheless, Defendant A entered into an order for work clothes contract with employees at the above victim Corporation, which is an unclear public tender procedure, to avoid unclear whether it is possible to enter into a private contract with the above victim corporation or the G Central Business Headquarters (hereinafter referred to as the "Korea District Heating Corporation"), an incorporated association (hereinafter referred to as the "Korea District Heating Corporation"), which is a company designated for production facilities, which is a medium production facility that can enter into a private contract as above, and then, acquired economic benefits by importing the relevant goods from China or Vietnam at which the manufacturing cost was low. Defendant A supplied the aforementioned goods to the Association or the Association on March 10, 20.

However, in fact, the Defendants entered into a contract for the delivery of goods to the victim with the above Association by lending the name of the above Association, and after importing the goods at low price in China or Vietnam, the Defendants planned to supply the goods, which had been well purchased from domestic companies, by pretending that they were produced by the above Association.

2. Criminal facts;

A. Joint criminal conduct by Defendant A and Defendant B

(1) Violation of special law on preferential purchase of products manufactured by persons with severe disabilities

On May 15, 2015, the Defendants concluded a contract for the supply of clothing with the victim corporation and clothes using the name of the production facility of severely disabled persons in total four times as shown in the attached Table No. 2015, including a unit price contract for the purchase of goods manufactured by persons with severe disabilities, by attaching "written designation of the production facility for persons with severe disabilities" of the above Association by lending the name of the victim corporation and the above Association and attaching "written confirmation of direct production" to the above Association. Accordingly, Defendant A used the name of the above Association, which is the production facility for persons with severe disabilities, without being designated as the production facility for persons with severe disabilities, and Defendant B lent the name of the above Association, which is the production facility for persons with severe disabilities, to another person.

(2) After the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), the Defendants pretended to deliver the clothing products manufactured directly by the severely disabled persons belonging to the foregoing Association as stated in the preceding paragraph, and requested a free contract to the contracting officer of the General Security Team of the said victim Corporation, which, in turn, designated the said Association as the contracting officer of the victim corporation, as the free contract. On May 15, 2015, the Defendants concluded a unit price contract for the purchase of the said victim and the said victim's work clothes in 2015.

On June 16, 2015, the Defendants received KRW 1,038,437,994 in the same manner on 19 occasions as indicated in the attached Table of Crimes (1), including that the Defendants received KRW 210,869,318 in the name of the said Association as the price for the goods, and received KRW 210,869,318 in the same manner as the Hbank account (Account Number I) used by the said Association, pursuant to the contract received as above, from China and Vietnam on June 16, 2015. Accordingly, the Defendants received money in the same manner as the price for the goods by deceiving the said construction as the victim.

B. No trader or distributor of goods, etc. violating the Foreign Trade Act of Defendant A shall impair or modify the indication of origin of goods subject to the indication of origin.

Nevertheless, Defendant A, on May 20, 2015, imported from the Republic of Korea Twitts 2,570, which was reported by the J on Import Declaration on May 20, 2015, and thereby, damaged the origin indication by allowing employees of the C workplace to properly abolish the MADE INCHA’s origin indication attached to the said Titts in order to deliver it to the victim’s corporation as if it were the clothes produced by the said Association.

In addition, from the above date to October 27, 2016, the Defendant damaged the country of origin labeling of the total of 12,307 points of China and of the Vietnam Articles 12,307 imported or purchased from another company, and supplied the said victim to the said victim at that time. Accordingly, the Defendant, as a trader and seller of goods, damaged the country of origin labeling of 12,307 points of Korea and Vietnam Articles 12,307 of the Articles subject to origin labeling.

The defendant, as described in paragraph 2-b., committed an act that damages the indication of origin of goods subject to origin labeling in relation to the business of the corporation A, a representative director of the defendant.

Summary of Evidence

1. Each legal statement of the defendant A and B;

1. Each police officer's statement of K, L, M, and N;

1. A report on investigation (Settlement of Illegal Goods) and a report on investigation (report on investigation results);

1. C. Total Certificate of registered matters; 0.M. 1.M. 2; 2.M. 1: C. ; 1.M. 2 ; copy of 2.M. 2. E. ; 1.M. 2. E. ; copy of c.M. 2. E. 1.M. 2; 3.M. 1.M. 2.M. 1.M. 2.M. 2.M. 2.M. 1.M. 2.M. 2.M. 2.M. 1.M. 2.M. 2.M. 2.M. 2.M. 1.M. 7.M. 2.M. 2.M. 1.M. 2.M. 1.M. 7.M. 2.M. 1.M. 3.M. 2.M. 3.M. 1.M. 3.M. 3.M.M. 3/S. 3/MM 3/M 1.M 3/S.M 3/S.MM 1.M

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

○ Defendant A: Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 15256, Dec. 19, 2017); Articles 347(1) and 30 (including fraud; hereinafter referred to as "Fraud"); Articles 22(1) and 9(2) of the Criminal Act; Article 30 of the Criminal Act; Article 53-2 subparag. 1-2 and 33(4)2 of the Foreign Trade Act (with regard to the use of production facilities in the name of a person with severe disabilities; hereinafter referred to as "person with severe disabilities"); Articles 53-2 and 33(4)2 of the same Act (with regard

○ Defendant B: Article 3(1)2 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 15256, Dec. 19, 2017); Articles 347(1) and 30 (including frauds) of the Criminal Act; Articles 22(1) and 9(3)3 of the Special Act on the preferential Purchase of Products manufactured by Persons with Disabilities; Article 30 of the Criminal Act; Article 57, Article 53-2 subparag. 1-2, and Article 33(4)2 of the Foreign Trade Act (amended by Act No. 15256, Dec. 19, 201); Article 30 of the Criminal Act; Article 57, Article 53-2 subparag.

1. Aggravation for concurrent crimes;

○ Defendant A: The punishment provided for in the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act, which is the largest penalty, shall be aggravated for concurrent crimes with the punishment provided for in the Act on the Aggravated Punishment, etc.

○ Defendant B: The punishment provided for in the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act is more severe than that of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), the aggravated punishment of concurrent crimes, and the long-term punishment of the two crimes

○ Defendant C Co., Ltd.: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act [the aggravation of concurrent crimes with punishment stipulated in the Foreign Trade Act as stated in No. 7 of the year table of crimes with the largest penalty]

1. Discretionary mitigation;

○ Defendant A and B: Each of the Articles 53 and 55(1)3 of the Criminal Code (The following consideration of favorable circumstances among the reasons for sentencing)

1. Suspension of execution;

○ Defendant A and B: Article 62(1) of each Criminal Act (The following consideration has been made for the reasons for sentencing)

1. Order of provisional payment;

○ Defendant C: Reasons for sentencing under Article 334(1) of the Criminal Procedure Act

1. The scope of punishment by law;

(a) Defendant A: Imprisonment with prison labor for a year and six months from June to June 22;

B. Defendant B: Imprisonment between June and June 15. Defendant C Company: a fine not exceeding 150 million won.

2. Scope of recommended sentences according to the sentencing criteria;

A. Defendant A

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

[Determination of Punishment] General Fraud. Type 3 (at least 500 million won, less than 5 billion won)

[Special Emotional Persons] Reductions: Where the risk of occurrence of damage is not substantially realized;

[Scope of Recommendation] Reduction Area, one year and six months of imprisonment to four years

2. Violation of the Special Act on the Preferential Purchase of Products manufactured by Persons with severe disabilities: The sentencing guidelines are not set.

3) A violation of the Foreign Trade Act: No sentencing criteria are set.

4) Scope of final recommended punishment based on the standards for handling multiple crimes: Imprisonment with prison labor for not less than one year and six months (the former part of Article 37 of the Criminal Act between the crimes for which the sentencing criteria are set and the crimes for which the sentencing guidelines are not set, therefore only the lower limit of the scope of sentence according to the sentencing guidelines for the crimes for

B. Defendant B

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

[Determination of Punishment] General Fraud. Type 3 (at least 500 million won, less than 5 billion won)

[Special Emotional Persons] Reductions: Where the risk of occurrence of damage is not substantially realized;

[Scope of Recommendation] Reduction Area, one year and six months of imprisonment to four years

2. Violation of the Special Act on the Preferential Purchase of Products manufactured by Persons with severe disabilities: The sentencing guidelines are not set.

3) Scope of final recommended punishment based on the standards for handling multiple crimes: Imprisonment with prison labor for not less than one year and six months (the former part of Article 37 of the Criminal Act between the crimes for which the sentencing criteria are set and the crimes for which the sentencing guidelines are not set, therefore only the lower limit of the scope of sentence according to the sentencing guidelines for the crimes for

C. Defendant C: The sentencing criteria are not set.

3. Determination of sentence;

A. Defendant A

The following circumstances and the defendant's age, character and conduct, environment, family relationship, motive, means and consequence of the crime, degree of participation, circumstances after the crime was committed, etc. shall be determined as ordered by comprehensively taking into account various factors of sentencing as shown in the arguments in this case.

When Defendant A was unable to enter into a contract with the victim who is a public institution through competitive bidding, each of the crimes of this case was committed by Defendant C with the name of the production facility for products manufactured or imported by Defendant C, which can enter into a negotiated contract in collusion with Defendant B, by deceiving a contracting officer of the victim corporation as if he directly produces and supplies the products in the production facility for products manufactured by the products manufactured by the products manufactured by Defendant C, and by damaging the indication of origin to this end, by acquiring the proceeds of the goods from the victim corporation. It violates the purpose of the Foreign Trade Act to impair fair trade order related to the operation of public institutions and the facilities for products manufactured by products manufactured by the products manufactured by the products manufactured by the products manufactured by the products manufactured by the victim

Defendant A seems to have recognized all of his own crimes and against it. Although the amount of fraud of the crime in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) is a large amount, the corresponding goods were supplied to the victim corporation, and the price of the goods was set excessively or there is no defect in the goods, so the victim corporation does not seem to have suffered any particular loss. Defendant A has no history of criminal punishment heavier than the suspension of execution, except three times sentenced to a fine.

B. Defendant B

○○ Unfavorable Circumstances: Each of the instant crimes committed by Defendant B in collusion with Defendant A by leasing the name of the production facility for products manufactured by persons with severe disabilities, thereby deceiving a contracting officer of the victim’s corporation to directly produce and supply the products purchased or imported by Defendant C, and by deceiving the proceeds of the goods from the victim’s construction, and thereby undermining fair trade order related to the operation of the production facility for products manufactured by persons with severe disabilities, among public institutions and public institutions, by taking away the opportunity to conclude a private contract for other persons with disabilities, which satisfies the legitimate qualification requirements, is not sufficient to commit such crime.

Defendant B seems to have recognized all of his criminal acts and against it. Although the amount of fraud of the crime in violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) in this case is a large amount, the corresponding goods were supplied to the victim corporation, and the price of the goods was set excessively or there is no defect in the goods, the victim corporation does not seem to have suffered any particular loss.

C. Defendant C

The defendant C’s representative, who is a direct offender, shall comprehensively take into account the circumstances of the crime A, the details and degree of the violation, and the circumstances before and after the crime, etc., and determine the punishment as ordered.

Judges

The presiding judge, judges and assistant judges

Judges Park Jong-ro

Judges Park Jae-gu

Note tin

(i) Article 26 of the Enforcement Decree of the Act on Contracts to Which the State is a Party (if a negotiated contract is allowed),

(1) A negotiated contract may be concluded pursuant to the proviso to Article 7 (1) of the Act in any of the following cases:

4. Any of the following persons established to provide persons who have rendered distinguished services to the State or persons with disabilities with jobs, welfare services for veterans, etc.:

(b) a contract for the manufacture of goods or for services (the goods directly produced by the relevant organization and the services directly provided by the organization, etc.);

only when they enter into a contract or directly sell goods to such organization, etc.

Production facilities for human products in a medium certificate depository designated pursuant to paragraph (1) of this Article;

Article 7 (Promotion of Purchase by Public Institutions)

(1) The heads of public institutions shall promote the purchase of products manufactured by persons with severe disabilities preferentially.

(4) Public institutions may purchase products manufactured by persons with severe disabilities by free contract, and institutions or organizations performing affairs related to products manufactured by persons with severe disabilities under Article 1

A contract may be concluded on behalf of any similar facility prescribed by Presidential Decree.

(5) Procedures, methods, etc. for a negotiated contract under paragraph (4) shall be governed by the Act on Contracts to which the State is a Party and other relevant statutes.

(c)

2) The indictment is written as 19 times, but the indictment is written as '19 times', and if the records of non-speaking and evidence are integrated, it is between the injured party and the above association.

Contract for the supply of clothing concluded 4 times in total (unit price contract for the 2015 East and Lower Work Uniforms, contract for the purchase of work uniforms in 2015, and dives (locked) in 2015.

The purchase contract, the 2016 East/Haak unit price contract, and the supply payment is made in installments over a total of 19 times under the above four-time contract.

Since the above written indictment is deemed to be an obvious clerical error or error, there is no substantial disadvantage in exercising the defendant's right of defense.

shall be corrected ex officio within the extent of the amendment of the separate indictment without the amendment process.

3) The indictment contains applicable provisions to the lending of the name of the production facility for products manufactured by persons with severe disabilities in Defendant B.

Although Articles 22(1) and 9(2) of the Criminal Act and Article 30 of the Criminal Act are legal fictions, Article 9(2) of the same Act is subject to designation of production facilities for products manufactured by persons with severe disabilities.

A provision prohibiting the use of the name, and Article 9 (3) prohibits a person designated as a production facility for products manufactured by persons with severe disabilities under his/her name.

The provision prohibiting lending to Defendant B, which applies Article 9(2) of the above Act to Defendant B, appears to be an obvious clerical error.

Article 9 (3) of the Amendment to Bill of Indictment does not put a substantial disadvantage to the defendant's exercise of his/her right of defense.

shall be corrected ex officio without any difference.

4) The Company is charged with the total violation of the Foreign Trade Act as a single crime, but this part of the crime is different from the country of import or purchaser.

(2) No. 7 of the annexed List of Offenses No. 5 of the Foreign Trade Act shall be deemed to constitute a crime by number. The value of the imported goods is the value of the goods.

Since it is high (Evidence No. 1134, 1668) the criminal body is the highest.