Defendant

Defendant and Prosecutor

Civil Defense;

Law Firm Sejong-ho et al., Counsel for the defendant-appellant

Seoul Central District Court Decision 2003Ra10854 Delivered on July 22, 2004

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

Two days of detention before pronouncement of the judgment below shall be included in the above sentence.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

The defendant shall be ordered to provide community service for 160 hours.

1. Grounds for appeal by the defendant and prosecutor;

A. The gist of the grounds for appeal by the defendant is as follows:

First, with regard to the bid for the storage of goods stated in the crime 1-A of the judgment below, the defendant, the representative director of the non-indicted 1-stock company, did not have any collusion with the non-indicted 2, the non-indicted 3 who operated the (mutual omission) company among the bidders participating in the above bidding, and the non-indicted 5, the representative director of the non-indicted 4 corporation. As such, even if the defendant did not negotiate with some bidders, if the defendant did not act with some bidders, it would not constitute a crime of interference with the bidding. However, the court below erred by misapprehending the legal principles as to interference with the bidding, thereby recognizing that the defendant committed the crime of the crime of the non-indicted 1-A in the judgment of the court below, thereby adversely affecting the conclusion of the judgment.

Second, with respect to the automatic knife tender of the criminal facts 1-B in the judgment of the court below, even if the defendant, as the chief of the non-indicted 8 corporation, acted as the chief of the non-indicted 7 on behalf of the non-indicted 8 corporation, and the non-indicted 6, the representative director of the non-indicted 9 corporation, refused the collusion between the defendant and the non-indicted 7 while not knowing the above collusion, and participated in the above automatic knife tender without the consent of the non-indicted 7, and as a result, the non-indicted 8 and the non-indicted 9 corporation were awarded a successful bid more than 6 times the estimated bid price, as long as the non-indicted 9 corporation was awarded a successful bid at a price above 6 times the estimated bid price, the above bidding process cannot be deemed to be impeded. Thus, although the defendant's act of collusion with the non-indicted 7 on the above bidding does not constitute a obstruction of tender, the court below erred in the misapprehension of legal principles as to the obstruction of tender and thereby recognizing the crime of criminal facts.

Third, as stated in the facts of the crime in the judgment of the court below, it was true that KRW 50 million was withdrawn on October 9, 2002, immediately after the completion of the establishment registration of the above company, and KRW 200 million was deposited into the account of Nonindicted Company 11; KRW 300 million out of the above KRW 310 million was deposited into the account of Nonindicted Company 11; however, the court below erred in the misapprehension of the legal principles on October 9, 2002, which was concluded on the following day between Nonindicted Company 9 and the Nonindicted Company 11, which affected the conclusion of the judgment of the judgment of the court below, on the ground that the Defendant conspired to the account of Nonindicted Company 111 and Nonindicted Company 1110 million out of the transfer and takeover price of the "business transfer and takeover contract with which Nonindicted Company 9 was operated by Nonindicted Company 1, 1,000 won, which affected the conclusion of the judgment of the judgment of the court below, and thus, the Defendant did not have the highest effect on the remaining payment amount of KRW 100 million.

Fourth, as stated in the facts of the crime in the judgment below, it was true that KRW 1.2 billion was withdrawn on December 28, 2001, which was immediately after the completion of the establishment registration of the above company, and KRW 1.0 billion was deposited in the account of Nonindicted 12, a bondholder, and KRW 70 million in the account of Nonindicted 1, a corporate bonds company. However, the above KRW 1.0 billion was concluded on December 28, 2001 between Nonindicted 11 and Nonindicted 1, as of December 28, 2001, "the transfer and takeover contract between Nonindicted 1 and Nonindicted 1, a corporation, which was operated by Nonindicted 1, takes over KRW 1.1 billion in the price, as part of the "transfer and takeover contract with Nonindicted 1, a sales contract with which Nonindicted 1, a corporation takes over the poppy business operated by Nonindicted 1, as part of the transfer and takeover payment to Nonindicted 1, and it did not affect the conclusion of the judgment, and thus, the lower court erred in its judgment.

Fifth, the sentence imposed by the court below (one year of imprisonment, two years of suspended execution) is too unreasonable.

B. The gist of the prosecutor’s appeal is that the sentence imposed by the court below is too unfasible and unreasonable.

2. The judgment of this Court

(a) First, we judge the defendant's third, fourth, the reasons for appeal together.

(1) Comprehensively taking account of the evidence duly admitted and examined by the lower court, the following facts can be acknowledged.

(A) In the form of Nonindicted Co. 11, as a company, the Defendant was holding Nonindicted Co. 13 as a representative director, and actually administered and operated by the Defendant. At the time of the incorporation of Nonindicted Co. 11, Nonindicted Co. 11, the shareholders on the register of shareholders, Nonindicted Co. 14, 13, 15, 16, 17, and 18, who were shareholders on the register of shareholders, did not have invested at all KRW 1.2 billion in the capital for the establishment of Nonindicted Co. 11; and the Defendant, who was withdrawn from Nonindicted Co. 11’s account and Nonindicted Co. 19, and Nonindicted Co. 20 billion in the borrowed money from Nonindicted Co. 12, who was the borrowed money from Nonindicted Co. 19 and the borrowed money from Nonindicted Co. 12, who was the bond company, returned KRW 1 billion to Nonindicted Co. 12 and returned KRW 70 million to Nonindicted Co. 11.

(B) On October 16, 2003, Non-Indicted 13 asserted that shareholders, including them, were present at the prosecutor’s office and investigated, and that they had established the company by paying the share capital, and presented evidential data. However, the communication was discontinued by the account tracking, etc.

(C) In addition, Nonindicted Co. 9 was also holding Nonindicted Co. 6 as representative director in the form of the Defendant’s automatic photographing machine business, and was actually controlled and operated by the Defendant. Nonindicted Co. 6, Nonindicted Co. 21, Nonindicted Co. 22, Nonindicted Co. 23, Nonindicted 24, and Nonindicted Co. 25, the shareholders on the register of shareholders at the time of the incorporation of bencium, did not fully contribute to KRW 50 million of the incorporated capital of Nonindicted Co. 9. The Defendant paid the share capital to Nonindicted Co. 10, the account of Nonindicted Co. 1, and the money withdrawn from Nonindicted Co. 11, the second account of Nonindicted Co. 1, the second account of Nonindicted Co. 1, and the second account of Nonindicted Co. 11, but deposited KRW 200 million in each account of Nonindicted Co. 11.

(2) In light of the above facts, Nonindicted Co. 9 and Nonindicted Co. 11 appear to have taken over part of the business of Nonindicted Co. 6 and Nonindicted Co. 13 as a nominal representative director for business necessity, and have taken over part of the business of Nonindicted Co. 1 only in the form of controlling and managing them. Of KRW 500 million which was paid out with the establishment capital of Nonindicted Co. 9, the sum of KRW 310 million deposited with the account of Nonindicted Co. 11 and the account of Nonindicted Co. 10, and KRW 1.2 billion deposited with the establishment capital of Nonindicted Co. 12 among KRW 1.2 billion deposited with the account of Nonindicted Co. 9 and the account of Nonindicted Co. 11, the sum of KRW 1.7 billion deposited with the account of Nonindicted Co. 12 and KRW 1.2 billion deposited with the account of each of the Nonindicted Co. 11, Nonindicted Co. 100 and Nonindicted Co. 111 were difficult to be considered to have taken over or paid money from each of Nonindicted Co. 112.

(3) Therefore, the decision of the court below that the defendant conspired with the non-indicted 6 to commit a crime listed in paragraph (2) of the facts stated in the decision of the court below, and that the defendant committed a crime listed in paragraph (3) of the facts stated in the decision of the court below in collusion with the non-indicted 13, is proper, and there is no error of misconception of facts or misapprehension of legal principles as pointed out in the grounds for

B. Next, the defendant's second reasons for appeal are examined.

(1) The meaning of "accompeting the fairness of bidding" of the obstruction of bidding includes not only the act of determining the price of bidding but also the act of impairing the fair and adequate competitive method, as it causes a situation in which fair competition by forming an appropriate price is likely to be impeded (see Supreme Court Decision 94Do2142 delivered on November 8, 194, etc.).

(2) However, in full view of the evidence duly adopted and examined by the court below, Nonindicted 26 and Nonindicted 27’s statements in the trial court of the political party, and Nonindicted 7’s partial statements in the trial court of the political party, the following facts can be acknowledged.

(A) On December 6, 2002, Seoul subway Corporation publicly announced that the bid for the leasing business on the installation and operation of the Red Sea Pream, which is convenience facilities within the subway station, will be held at 14:30 on the same day on December 17, 2002, the bid for the leasing business on the installation and operation of the goods storage box (hereinafter “the instant bid for storage box”) shall be held at 14:30 on the same day, and at 15:30 on the same day on the same day, the bid for the leasing business on the installation and operation of the automatic local photographer (hereinafter “instant bidding”). According to the above public notice, each of the above bids set the highest bid price above shall be determined as the bid price (i.e., the appraised price for rent for five years).

(B) On December 16, 2002, the date of registration, five companies, including Nonindicted Co. 1, Nonindicted Co. 9, Nonindicted Co. 28, Nonindicted Co. 8, Nonindicted Co. 8, and Nonindicted Co. 29, etc., completed their respective bidding registration. Of the above five companies, Nonindicted Co. 9 was a company that was actually controlled and operated by the Defendant, and Nonindicted Co. 28 was a Dormant Co. 1’s bidding. Nonindicted Co. 28 was the representative director of Nonindicted Co. 8 and the actual operator of Nonindicted Co. 26, Nonindicted Co. 8, in order to establish the storage box and the bid for the photographic machine.

(C) The Defendant continues to engage in leasing business after receiving a successful bid for the instant box. In the instant photographer tender, Nonindicted Co. 8, an existing business operator, excluded Nonindicted Co. 8, and was awarded a successful bid in the name of Nonindicted Co. 9, and the Defendant decided to engage in leasing business of photo. On December 16, 2002, Nonindicted Co. 7, who was granted the authority to represent Nonindicted Co. 8 with respect to the instant box box and the instant photographer tender from Nonindicted Co. 26, who was given the representative director of Nonindicted Co. 29, and Nonindicted Co. 7, who, in the instant box tender, gave up Nonindicted Co. 1’s bid registration for keeping the instant box as a successful bidder, Nonindicted Co. 6, who was registered for Nonindicted Co. 8’s bid, and had Nonindicted Co. 6, the Defendant agreed to give up Nonindicted Co. 1’s bid as a successful bidder for Nonindicted Co. 8’s bid, to the extent that Nonindicted Co. 7’s bid would have been able to resolve this case’s bid during the period of 70 years.

(D) On the other hand, the Defendant informed Nonindicted Co. 9 to Nonindicted Co. 6 of the circumstances that the Defendant conspireds with Nonindicted Co. 7 and brought an accusation against Nonindicted Co. 7, and, in such a situation, notified Nonindicted Co. 8 of the materials necessary to determine the bid price to be presented for the successful bid, and ordered Nonindicted Co. 9 to receive the bid in the instant photographic bid.

(E) On December 16, 202, the day before the tender was made, Nonindicted 7 promised to collusion with Nonindicted 6 by sending Nonindicted 8’s employees to Nonindicted 6’s house on December 16, 2002, when Nonindicted 7 believed that Nonindicted 2-B(c) of the Defendant’s aforementioned 2-B(2) was true, and accordingly, Nonindicted 7 offered a collusion with Nonindicted 6 at the bidding place around December 17, 2002, which was the day when the tender was made, to the effect that “I will give up the instant photographic tender at the price of 10,000 won,” and that Nonindicted 6, upon receiving an order from the Defendant, did not appear to have any other way to conclude that “I would have any other way to give up the bid even if I would give up the bid, I would have any other way to conclude that I would have to give up the bid.”

(F) At the end of the discussion with the employees of Nonindicted 26 and Nonindicted 8, the representative director of Nonindicted Company 8, Nonindicted 7, who heard Nonindicted 6’s response to the proposal of the above collusion, Nonindicted 7, as seen above, conspiredd with Nonindicted Company 1, the actual competitor in the instant photographic tender, and Nonindicted 6, the representative director of Nonindicted Company 9, who is another competitor, determined the bid price that Nonindicted Company 8 would be able to win a contract at KRW 2.5 million, and submitted the bid price on the bidding sheet by stating the bid price at KRW 2.25 million.

(G) Meanwhile, under the above circumstances, Nonindicted 6 and the Defendant excluded Nonindicted Company 8, and determined the bid price at KRW 3.1 billion which Nonindicted Company 9 could have been awarded a certain award, and entered the bid price in the bidding list at KRW 3.11 billion and submitted it.

(h) In the instant photographic bid, the estimated price determined by the appraisal of rent was KRW 503,684,50. Of the bidders, Nonindicted Co. 1 was determined as the successful bidder, Nonindicted Co. 9, a bid of KRW 3.13 billion, KRW 580,000 for Nonindicted Co. 9, KRW 280,000 for Nonindicted Co. 28, KRW 2250,000 for Nonindicted Co. 8, and KRW 29,000 for Nonindicted Co. 29, a bid of KRW 350,000 for each of the highest prices.

(3) According to the facts found above, even if the non-indicted 9 was awarded a bid at a price exceeding six times the estimated bid price as a result of the bidding at a price exceeding the estimated bid price, the defendant, like the above 2-B-2-B-2 (c) and (d), did not actually intend to comply with the collusion with the non-indicted 7, while making a false accusation with the non-indicted 7. In addition, the non-indicted 6, in fact, had taken the attitude of Non-indicted 8, such as the non-indicted 7, and had taken the position of responding to the collusion with the non-indicted 7, and the non-indicted 7, and the non-indicted 8, such as the non-indicted 7, etc., made a bid at a price lower than the price that would have been determined at the price without the defendant and the non-indicted 6's deception. In light of the above legal principles, in light of the above, the defendant and the non-indicted 6 and the non-indicted 7's above act constituted a obstruction of tender.

(4) Therefore, the decision of the court below that the defendant conspired with the non-indicted 6 and non-indicted 7 to commit the crime as stated in paragraph 1-B of the crime in the decision of the court below is proper, and there is no error of mistake of facts or misapprehension of legal principles as pointed out in the grounds of appeal. The second appeal by the defendant is not accepted.

C. The defendant's first ground for appeal is examined.

(1) Whether the collusion between Nonindicted 2 (Trade Omitted) and Nonindicted 3 (Trade Name omitted) was made or not

(A) The following facts can be acknowledged in full view of the evidence duly adopted and examined by the lower court and the statements of Nonindicted 30 at the party trial court.

① Nonindicted 2’s (trade name omitted) is a private company that operates a trade business and did not perform the business of selling, leasing, etc. of a self-reader. However, Nonindicted 2 became aware of the Defendant’s prior to 3 and 4 years, as a case of the Defendant’s consultation on the export of the Red Sea Cor Sea Corde.

② On December 5, 2002, immediately before the bid for the instant box, Nonindicted 3 operated (trade name omitted), Nonindicted 3 reported the closure of business on January 17, 2003.

③ The estimated price of the bid for the instant box (i.e., the rent for five years) was KRW 1,550,000,000 for KRW 1.55 billion. In the instant storage box bid, the company (trade name omitted) offered each bid at the bid price of KRW 682,00,000,000, which is much less than that, and (trade name omitted) KRW 310,000,000,000 for each bid price.

④ At the time of the instant storage box tender, Nonindicted Co. 1 was awarded a performance guarantee for the bid of Nonindicted Co. 31 and Nonindicted Co. 32; Nonindicted Co. 31 and Nonindicted Co. 32 issued a performance guarantee for the (trade name omitted); however, at the time of the Defendant’s offer of the instant storage box, Nonindicted Co. 31 filed an application for participation in the bid on behalf of Nonindicted Co. 28, a bidder of Nonindicted Co. 1, on behalf of Nonindicted Co. 28 at the time of the instant bidding; and Nonindicted Co. 32 filed an application for participation in the bid on behalf of Nonindicted Co. 28 at the time of the instant storage box; and provided a performance guarantee for Nonindicted Co. 9 and Nonindicted Co. 28.

⑤ Around August 20, 2003, the result of search and seizure of the office of Nonindicted Co. 1 located in the history of subway (name omitted) station (name omitted) station in Jung-gu, Seoul, and the copy of the business registration certificate of Nonindicted Co. 1’s office was discovered at the office of Nonindicted Co. 1.

④ On the other hand, on December 17, 2002, Seoul subway Co., Ltd. bid price of KRW 31,549,500,000, the bid price of KRW 49,549,500, the bid price of KRW 31,50,000,000, which is the estimated bid price, was the bid price of KRW 18,770,000, respectively. In the bid of the Red Sea Co., Ltd., the bid price of KRW 54 million was awarded by Nonindicted Co. 1 Co., Ltd.

(B) According to the above facts, (trade name omitted) enterprises and (trade name omitted) self-markets shall be deemed to be in collusion with Nonindicted Co. 1, as participating in the bidding, or to be in collusion with Nonindicted Co. 1, as a participating in the bidding, by pretending to be awarded a successful bid in the bidding for the storage box of this case, in accordance with the agreement with the Defendant.

(C) Therefore, this part of the defendant's first appeal is without merit.

(2) Whether there was collusion with Nonindicted Co. 4

(A) The lower court acknowledged that Nonindicted 5, the representative director of Nonindicted Co. 4, did not directly prove that Nonindicted Co. 1, including the Defendant, had a bidding collusion with Nonindicted Co. 1, including the Defendant before the bidding date, but, in light of the size of Nonindicted Co. 4’s company, economic ability, and the situation of conversations between the Defendant and the Defendant at any time after Nonindicted Co. 5’s investigation by the prosecution, etc., it was recognized that Nonindicted Co. 5, who entered the bidding site at the time of the instant bidding, had Nonindicted Co. 5 knife the Defendant’s participation in the bidding at the time of the bidding without home, and accepted Nonindicted Co. 5’s participation in the bid at the end of the bidding and forced Nonindicted Co. 5 to give up his bid at least 1.5 years after completion of the bid, he did not have any influence on the Defendant’s presentation of his bid agreement by means of a fair bidding agreement. In light of the fact that Nonindicted Co. 4’s expression of intent to tender was finally made.

(B) The lower court appears to have recognized each of the statements made by Nonindicted 7 and Nonindicted 5 to the investigation agency (in respect of Nonindicted 5, the second prosecutor’s statement made in the prosecutor’s office), but it is difficult to accept such measures for the following reasons.

① First, the content of each statement made by Nonindicted 7 in the investigative agency is that “ Nonindicted 4 Company was in response to an amount that falls short of the appraised value of the rent for the business in which the goods are stored, and Nonindicted 7’s suspicions leading the Defendant to a low price bid is prevented.” This is merely a conjection of Nonindicted 7.

② 다음, 공소외 5의 수사기관에서의 진술(제2회 검찰 진술조서)에 의하면, ㉠ 공소외 5가 이 사건 보관함 입찰 당일 입찰장에 들어가려 할 때 피고인 측 사람들로 보이는 15명의 사람들이 공소외 5를 에워싼 후 공소외 5의 손과 어깨를 잡아끌며 “가서 얘기 좀 하자”며 공소외 5를 입찰장 구석으로 데리고 가려고 하였으나, 공소외 5가 저항하는 사이에 입찰참관인이 공소외 5 쪽으로 다가오자, 피고인 측 사람들이 물러가 공소외 5는 입찰장 안으로 들어갈 수 있었고, 공소외 5는 입찰장 안으로 들어온 후 피고인 측 사람들의 위 행위는 공소외 4 주식회사가 이 사건 보관함 입찰에서 빠져 줄 것을 제의하는 취지인 것으로 이해하고 고민을 하다가 처음에 입찰가격으로 적었던 37억 2,000만 원을 지우고 입찰가격을 15억 원으로 고쳐서 제출한 사실, ㉡ 공소외 5는 이 사건 보관함 입찰에서 공소외 1 주식회사가 낙찰자로 결정된 후 입찰장을 빠져 나오면서 피고인을 만나자 피고인에게 “5년 뒤에는 저를 밀어주십시요”라고 이야기하였고, 이에 피고인은 웃으면서 공소외 5에게 “그렇게 하겠다”라고 답변한 사실, ㉢ 공소외 7이 이 사건 보관함 및 사진기 입찰과 관련하여 피고인을 입찰방해죄로 고소한 사건에서 공소외 5는 2003. 4. 21. 14:00부터 17:30까지 수사기관으로부터 참고인 조사를 받고서 귀가한 후, 같은 날 19:00부터 40초 동안, 19:08:47부터 13초 동안, 2003. 4. 22. 00:09:22부터 1분 44초 동안 피고인과 수사기관의 수사내용에 관하여 통화하였고, 또한 피고인이 2003. 4. 24. 서울중앙지방법원에서 영장실질심사를 받기 위하여 대기하던 중에 13:05:38부터 24초 동안 피고인과 통화한 사실, ㉣ 공소외 1 주식회사의 입찰가격이 입찰예정가격을 약간 넘은 16억 2,000만 원이고, 공소외 4 주식회사가 고쳐서 최종적으로 제출한 입찰가격은 입찰예정가격에 약간 못 미치는 15억 원인 사실 등을 인정할 수 있으나, 한편, 수사기관에서의 공소외 5의 전화에 대한 감청결과에 의하면 이 사건 보관함 입찰기일로부터 4개월 이상이 경과한 2003. 4. 21. 이전에는 피고인과 공소외 5 사이에 전화통화를 한 바 없는 점, 공소외 4 주식회사가 이 사건 보관함 입찰에 참가함에 있어 피고인이 실제로 운영하는 공소외 1 주식회사, 공소외 9 주식회사, 공소외 11 주식회사, 공소외 33 주식회사의 관계자들이 입찰이행보증을 하는 등 관여한 바가 없는 점, 당심증인 공소외 30도 공소외 5는 피고인을 알지 못하여 피고인과 공소외 5 사이에 사전담합은 없었을 것이라고 진술하는 점, 피고인 측 사람들이 이 사건 보관함 입찰기일에 입찰장에 들어가려는 공소외 5에게 몰려 올 당시에 공소외 5에게, 자신들이 공소외 1 주식회사 측 직원이라거나 이 사건 보관함 입찰을 포기하라거나 또는 입찰가격을 얼마 이하로 기재하라는 등의 이 사건 보관함 입찰에 관한 구체적인 내용은 고지하지 아니한 점 등에 비추어 보면, 위 ㉠, ㉡, ㉢, ㉣에서 인정한 사실만으로는 이 사건 공소사실 중 ‘피고인이 공소외 4 주식회사에게 입찰포기를 종용하여 삼보코스믹스로 하여금 감정가액 미만으로 응찰하여 경쟁입찰을 포기하게 하였다’는 점을 인정하기에 부족하다.

(3) No evidence otherwise supporting this point may be found in the record.

(C) Therefore, the court below erred in misunderstanding of facts in the facts charged of this case that "the defendant gave up competitive bidding by taking advantage of his renunciation of bid to non-indicted 4 corporation, and by failing to comply with the appraisal value less than the appraisal value," and it affected the judgment. The grounds of appeal as to this point are with merit.

(3) However, according to the evidence duly adopted and examined by the court below, even though the defendant did not hold collusion with the non-indicted 4 corporation in the bidding of the storage box of this case, the defendant had six companies, such as the non-indicted 9 corporation, the non-indicted 1 corporation, the non-indicted 9 corporation, the non-indicted 11 corporation, the non-indicted 33 corporation, the non-indicted 28 corporation, (trade name omitted), the (trade name omitted), the non-indicted 29 corporation, and the non-indicted 29 corporation, the non-indicted 9 corporation, the non-indicted 11 corporation, the non-indicted 33 corporation, the non-indicted 28 corporation, the (trade name omitted), the non-indicted 4 corporation, the non-indicted 1 corporation, the non-indicted 29 corporation, the non-indicted 1 corporation, the non-indicted 29 corporation, and the non-indicted 29 corporation's representative director of the non-indicted 1 corporation, who had been registered in the bidding of this case.

(A) The meaning of "accompeting the fairness of bidding" is that it causes a situation in which fair competition is likely to be impeded by forming an appropriate price, and it includes not only the price of bidding but also the act of impairing fair and appropriate competition methods. The purpose of the obstruction of bidding is not to establish a collusion with all bidding participants, and even if a collusion is made only with some of the bidding participants, it shall be deemed that the obstruction of bidding constitutes a crime of interference so long as it is evaluated as detrimental to the fairness of bidding.

(B) According to the facts found in Paragraph (3) of the above 2-C, among the companies that registered the bid for the storage box of this case, the companies actually participating in the bidding and conducting competition are three companies, such as Nonindicted Co. 1, Nonindicted Co. 29, and Nonindicted Co. 4. The defendant and Nonindicted Co. 7, the representative director of Nonindicted Co. 1, who are the representative director of Nonindicted Co. 29, committed the collusion as described in Paragraph (b)-B-B-B-B-B-B-2, and thereby the competition of Nonindicted Co. 29 was weakened from the initial three companies' competition, and the defendant and Nonindicted Co. 7, etc., committed the act of entering in Paragraph (a) of the attached Table 1, which constitutes a crime of interference with the bidding.

(C) In addition, the facts constituting the crime listed in attached Form 1-A, which the court below acknowledged, are within the same scope as the part of the original facts charged in this case (the part stated in attached Table 1-A of the original judgment) and the basic facts. Meanwhile, the defendant's defense counsel in this case's holding of this case from the original trial to the appellate trial, only in collusion with the bidding participants. In this case, since there was no collusion with the defendant with (trade name omitted), (trade name omitted), (trade name omitted), and (trade name omitted), and non-indicted 4 corporation, this part of the facts charged in this case did not constitute a crime of interference with bidding, it cannot be said that there was a substantial disadvantage for the defendant's defense right by recognizing the facts constituting the crime listed in attached Table 1-A without changing the indictment.

Therefore, this court can recognize the criminal facts stated in attached Table 1(A) without going through the procedures for Amendments to Bill of Indictment for this part.

(4) However, if the court recognizes the crimes listed in the attached Table 1-A, instead of the crimes listed in the crime No. 1-A as stated in the judgment of the court below, the sentencing conditions may vary depending on the form of the crime. However, the court below determined the facts charged as to the part of the crime No. 1-A as stated in the judgment of the court below and the remaining facts charged as to the substantive concurrent crimes as stated in the former part of Article 37 of the Criminal Act, which are subject to the judgment of the court below, and sentenced one punishment to the defendant, the judgment

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act without examining the defendant's fifth ground for appeal and the prosecutor's grounds for appeal, and the following is again decided after pleading.

The summary of the facts constituting the crime against the defendant recognized by this court and the summary of the evidence thereof are as follows: (a) the part of the facts constituting the crime in the original trial from 18 to 4, and from 5, from 18 to 5, of the original trial (the facts constituting the crime in the original trial) is changed to the same part as the attached documents; and (b) the summary of the evidence in the judgment of the court below is the same as the corresponding column of the judgment of the court below, except for adding "non-indicted 26 and non-indicted 34's own statements in the current trial court and some statements in the political trial court from non-indicted 7 of the witness in the party trial."

1. Relevant Article of the Act and the choice of punishment for the crime;

(a) Each act in the holding No. 1: Articles 315 and 30 of the Criminal Act.

(b) Acts referred to in subparagraphs 2 and 3 of the holding: Articles 628 (1), 622 (1), and 30 of the Criminal Act (Selection of Imprisonment with prison labor);

1. Aggravation of concurrent crimes;

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

1. Calculation of days of detention;

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

1. Social service order;

Article 62-2 (1) of the Criminal Act

The crime of this case is committed by the defendant's participation in the bid for the goods storage box or through collusion with non-indicted 7, and the actual substance of the business of the goods storage box of this case by pretending to be awarded the bid for the goods storage box of this case through competitive bidding, and by pretending to be in collusion with non-indicted 7, the method and quality of the crime are extremely poor, and the defendant does not reflect his mistake up to the trial. On the other hand, the defendant is the first offender. On the other hand, when the charge of this case is found guilty, the defendant is unable to continue to carry out the goods storage box of this case and the business of automatic local photographer, and is subject to restriction on the future bidding qualifications, and the defendant is punished in consideration of various sentencing conditions indicated in the record, such as the background and motive leading up to the crime of this case, the age and character of the defendant, character and environment, etc.

Judges Lee Sung-hun (Presiding Judge)