Defendant

Hanbather, Jind, Kim Jong-Un (Public trial)

Attorney Kim Yong-hwan

A defendant shall be punished by imprisonment for three years.

Of the facts charged in this case, each of the charges in breach of trust shall be acquitted.

The summary of the judgment on the acquittal shall be publicly announced.

【○○○ Construction Electronic Tender System Outline】

Of various electrical construction works ordered by the ○○○○ Construction (hereinafter referred to as the “○○○”), electronic tendering under the method of screening is conducted on its own Electronic Procurement System (Internet address omitted), and is conducted in the order of the basic amount, tender notice, bid bid bid bid price 1), bid bid examination for prospective bidders, bid bidder selection, and contract. ① First of all, the person in charge of the contracting department determines and announces the basic amount for the relevant construction, and ② the Electronic Procurement System server shall store 15 out of the basic amount which can be created within 16:0% prior to the end of the tender 【2.5% prior to the date of the tender, 【2.5% prior to the date of the tender, 【15% prior to the date of the tender / 15% prior to the date of the tender, and (3) if the bidder selects 4 of the bid price from among the 15 winning numbers which describe each preliminary price, the highest bid price of less than 15 billion won shall be 700 billion won, and the bid price of the bid price shall be less than 15000 billion won.

[Status of Defendant]

The Defendant is an electrical construction business operator who actually operates Nonindicted Co. 15, Nonindicted Co. 16, Nonindicted Co. 17, and Nonindicted Co. 18, Nonindicted Co. 2, Nonindicted Co. 3, and Nonindicted Co. 4 who have been in charge of the development and management of programs in each IT industry. Nonindicted Co. 1 is an employee of Nonindicted Co. 8, the IT manpower dispatch company from January 20, 2005 to December 2008, who is an employee of Nonindicted Co. 8, and is in charge of the maintenance and repair of the ○○ bidding system, who is in charge of the maintenance and repair of the ○○○ bidding system, and was dispatched to Nonindicted Co. 1, Nonindicted Co. 2, from August 6, 2008 to January 201, 2013; Nonindicted Co. 1, Nonindicted Co. 3, from July 26, 2012 to July 25, 2014; and Nonindicted Co. 1, Nonindicted Co. 14, dispatcheded Nonindicted Co.

【Public Offering】

During the management of the ○○ bid system and the operation principle of the system, Nonindicted Party 1 became aware of the fact that, in real time, the number of 15 precryptors and the highest number of bidders selected by the bidders, creating an abnormal access passage to the DB server, can enter the top 4 lot numbers information at their own expense, and can operate it in the number at their own expense. Nonindicted Party 1 was able to accurately calculate or change the successful bid price in advance without any error of KRW 1 won by manipulating the opening program that performs the function of linking 15 multiple and 15 lot numbers at random. Nonindicted Party 1 was able to accurately calculate or change the successful bid price without any error of KRW 1 won. Nonindicted Party 1 was able to talk with Nonindicted Party 5 and this fact at the village of the Seoul Special Forestry-based public announcement around August 2005, and the electrical construction business operator who wishes to purchase the winning bid information of Nonindicted Party 5, i.e., the construction business operator, operated the bid price of the construction project at issue, and notified Nonindicted Party 2 or 4 of his pecuniary profits.

On April 2013, Non-Indicted 5 proposed that “A prior notice of the successful bid price prior to opening by illegal means is given to the Defendant in a bid for power distribution works, etc. ordered by ○○○”, and Nonindicted 5, upon consenting to Nonindicted 5’s proposal, knew in advance whether the successful bid price was illegally awarded with Non-Indicted 5, and sentenced Nonindicted 5 to the bid price for construction ordered by ○○ by bidding the bid price that can be awarded.”

Therefore, the defendant, non-indicted 5, and non-indicted 1, etc. conspired to manipulate the results of the tender for various construction projects conducted by ○○ himself/herself, and to promote the crime of receiving construction price from ○○ upon receiving a successful tender by unjust means.

【Criminal Facts】

On November 2014, the Defendant: (a) asked Nonindicted 5 to obtain information from Nonindicted 5 to “to pay a certain percentage of the profits remaining after the progress of the construction work, if the Defendant informed Nonindicted 5 of the successful bid price in advance; and (b) asked Nonindicted 5 to obtain information; (c) after consenting to this, Nonindicted 1, 3, and 4 to manipulate the successful bid price with Nonindicted 1, 3, and 4, caused the Defendant to win the construction of a specific construction section; and (d) had the Defendant receive the payment from the Defendant.

On November 2014, Nonindicted 1 sent the serial numbers of the tender announcement to Nonindicted 3, 2014, Nonindicted 1, 2014, Nonindicted 1, 2014, Nonindicted 5, Nonindicted 5, and Nonindicted 1, Nonindicted 2, Nonindicted 2, Nonindicted 1, and Nonindicted 3, who were assigned the serial numbers of the tender announcement intended to manipulate the successful bid price, such as a high voltageB construction section, to Nonindicted 4 through Nonindicted 3. Nonindicted 4, Nonindicted 4, in collusion with Nonindicted 1, Nonindicted 1, 2014, Nonindicted 1, Nonindicted 3, and Nonindicted 1, Nonindicted 4, 2014, in which Nonindicted 1, Nonindicted 2, Nonindicted 4, and Nonindicted 1, Nonindicted 4, who were selected by Nonindicted 5, were aware of the serial numbers of the tender announcement at the bar number of the tender announcement, and Nonindicted 1, Nonindicted 3, 1, and Nonindicted 4, 5, in which Nonindicted 1, and Nonindicted 1, 3, were accurately informed of the tender tender price.

The Defendant, along with Nonindicted 5 and Nonindicted 1, etc., unlawfully awarded the “high pressureB construction work” bid by Nonindicted 15 Company, which the Defendant operated with Nonindicted 5 and Nonindicted 1, was awarded a bid by the said method, and the Defendant concluded a construction contract with the victim on December 31, 2014 through a formal qualification examination, by doing so as to have been awarded a successful bid in the said tender in which the said 308 Electric Construction Company participated, and by deceiving the victim ○○ through a normal competitive bidding.

In addition, the Defendant was awarded ○○ construction contract by the aforementioned method between April 18, 2013 and November 14, 2014, and the Defendant concluded a construction contract after which it had been awarded the said contract. From June 13, 2013 to February 11, 2015, the Defendant received the total construction cost of KRW 9,097,135,240 for 12 times as shown in the attached Table 1-11, and 16 from June 13, 2013 to February 11, 2015 and received the total construction cost of KRW 17,915,083,70 on five occasions, including the attached Table 12-15, and 17. However, the company that received the fraudulent successful tender did not have completed the construction work.

Accordingly, the Defendant, in collusion with Nonindicted 5, Nonindicted 1, 3, Nonindicted 2, and Nonindicted 4, and Nonindicted 7, etc., indicated in the separate sheet of crime that the Defendant linked Nonindicted 5 to Nonindicted 5, thereby deceiving the victim of a large amount of construction work, and subsequently, attempted to obtain the amount of a large construction contract, but in some of the construction works, failed to receive the construction cost, thereby obstructing the victim’s business regarding the calculation of the successful bid price and the determination of successful bidders by entering an illegal order into the information processing device, such as computer, and causing interference with the information processing, thereby interfering with the victim’s business regarding the calculation of the successful bid price and the determination of successful bidders, and, at the same time, pretending

1. Defendant's legal statement;

1. Each prosecutor's protocol of interrogation of the defendant, non-indicted 4, non-indicted 3, non-indicted 2, non-indicted 1, non-indicted 5, and non-indicted 7

1. Each prosecutor’s statement on Nonindicted 19, Nonindicted 20, and Nonindicted 21

1. Seizure records;

1. Copy of the data such as a copy of the special file business trial, copy of the IP address data of the special file business, the example printing, the confirmation of the date of creation of the unique file in the WAS server, each of the winning dates, each electronic tax invoice, each contract award information, each of the details of bid manipulation, the details of bid manipulation, methods of operation of hacking program, bid manipulation, data related to high voltage in 2015, non-indicted 1 file output, each of the public notice of tender, each of the notices of tender, each of the 15 copies of the files, index (A1) (j) file files, BOPNn.java file files, each of the printed data, the printed data of the 15 number of printed data from among the files, the printed data of the BOPn.java file files, the printed data of each unlawful order, each of the printed data of the electronic distribution company cooperation materials, and the standard of qualification examination for power distribution company;

1. Article applicable to criminal facts;

Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(1) and Article 30 of the Criminal Act (Attached Table Nos. 1 through 5, and 9 of the Criminal Act), Article 347(1) and Article 30 of the Criminal Act (Attached Table Nos. 6 through 8, 10, 11, and 16 of the Criminal Act), Article 352, 347(1), and 30 of the Criminal Act, Article 314(2) and (1), Article 30 of the Criminal Act, Article 314(2) and (1), Article 30 (Interference with Duties by Computer, etc.) of each Criminal Act, Article 315 and Article 30 (Interference with Tender) of the Criminal Act.

1. Commercial competition;

Articles 40 and 50 of the Criminal Act / [1] Articles 40 and 50 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), interference with the duties of each computer, etc., punishment provided for each of the offenses of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with the largest punishment on each of the offenses of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) with the largest punishment on each of the offenses of interference with bidding, ② Punishment provided for each of the offenses of fraud, interference with each

[See Supreme Court Decision 80Do2236 delivered on December 9, 1980). A series of acts in which the Defendant and other bidders actively distorted the decision-making process of the successful bidder's bid price with Nonindicted Party 1, etc. for a crime such as obstruction of business by computer, obstruction of bidding, obstruction of bidding, etc., and the bid price determined by unlawful means, based on the bid price determined by such unlawful methods, can be evaluated as a single deception against the victim. Thus, the crime of interference with business by computer, etc., interference with bidding, interference with bidding, and fraud, etc. is all established, and the social factual relations are identical in a basic point of view, and each of the above crimes constitutes several crimes, and thus it is reasonable to deem that there exists a relationship of mutual concurrence with each other].

1. Selection of punishment;

Selection of each imprisonment with labor for the crime of fraud, attempted fraud

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (limited to concurrent crimes with punishment prescribed in the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) in attached Table 9 No. 9 with the largest penalty and penalty)

1. Summary of the assertion

The victim entered into a contract for construction as the nearest amount to the successful bidder due to the act of interfering with bidding by the Defendant and Nonindicted Party 1. Since no property damage was inflicted on the victim or there was a considerable benefit to the victim, fraud is not established.

2. Determination

The essence of fraud is to acquire property or pecuniary profit by deception and thereby infringe upon the other party's property, so it does not need to actually cause any property loss to the other party (see Supreme Court Decision 2003Do4914, Dec. 26, 2003). In the case of fraud involving the taking-off of property, even though there was a delivery of property due to deception, or there was no damage to the whole property of the victim, it does not affect the establishment of fraud. Therefore, even if some of the proceeds have been paid in fraud, the defrauded amount is not the difference between the value of the property given by the victim and the value of the property (see Supreme Court Decisions 95Do203, Mar. 24, 1995; 200Do1899, Jul. 7, 200, etc.).

Therefore, Non-Indicted 1, etc., intended to distort or be aware of the successful bid price by means of a computerized manipulation using a malicious program, thereby obtaining a certain percentage of the successful bid price, and notified a certain bidder of the bid price based on the bid price. The specific bidder participated in a tender with the bid price known by improper means and was designated as a successful bidder. The specific bidder was final successful bidder after being qualified as a successful bidder. The above act by Non-Indicted 1, etc. and the specific bidder constitutes an active deception against the ○○○ bidder who did not know that the successful bid price was distorted or exposed. The bidder was excluded from the bidding process or did not determine as the final successful bidder. However, the final successful bidder was determined as the final successful bidder, and thus, the contract was concluded with the Defendant and the victim did not have any actual influence on the conclusion of the construction contract and the payment of construction cost, and thus, the causal relationship between the Defendant and the victim of the construction contract, including the instant fraud, was not established within the scope of fraud and the payment of the construction cost.

1. The scope of applicable sentences: Imprisonment for not less than three years nor more than 45 years;

2. Application of the sentencing criteria;

[Determination of Punishment] Form 4 (at least 5 billion won, but less than 30 billion won) of the Act on Fraud>

【Special Convicted Persons】

- Reduction element: If the risk of damage is not substantially realized;

- Aggravations: Where they have committed repeatedly over a considerable period of time;

【Determination of Recommendation Area】 Basic Area

[Scope of Recommendation] Four to nine years of imprisonment (one-stage increase in type as a result of the combination of concurrentness)

3. Scope of the recommended punishment based on the guidelines for handling multiple crimes: From 4 to 45 years of imprisonment (the lowest limit of the above recommended punishment shall apply to the crime of interference with the duties of computer, etc., interference with bidding, and attempted fraud, etc., on the grounds that the guidelines for sentencing are not set, and considering the applicable punishment (in the sentencing guidelines, the sentencing guidelines do not provide a separate method for dealing with the ordinary concurrent crimes, referring to the lowest limit of the above recommended punishment, which is the highest of the sentencing range of each crime in the ordinary concurrent relationship in light of the purpose

4. Determination of sentence;

The crime of this case was committed systematically and repeatedly over a considerable period of time, and the reliability of the Electronic Procurement System of 00 is seriously damaged, and the sum of the construction cost illegally awarded or awarded during the period of participation in the crime of this case reaches about 17 billion won, and the sum of the construction cost acquired by the defendant is about 9 billion won, about 17.9 billion won, and about 1.7 billion won, and the amount of the construction cost acquired by the defendant is not only the direct successful bid, but also the intermediary role that introduces other construction business operators to the non-indicted 1, etc. is disadvantageous to the defendant. The risk of the victim's damage is realized or the total sum of the construction cost of the illegally awarded construction cost is difficult to be considered as actual damage of ○○. The fact that the victim did not obtain any separate benefit while introducing other construction business operators to the non-indicted 1, etc., there is no history of criminal punishment before the crime of this case, and the fact that it is against the defendant is determined in consideration of various circumstances such as the defendant's age, character and family environment, how the crime of this case was committed.

1. Summary of the facts charged (the point of each giving rise to breach of trust);

Around April 2013, the Defendant received a proposal from Nonindicted 5 to the effect that “A person who works on the side related to ○○ and ○○ may be awarded a successful bid for a construction project that he/she wants to accurately identify the successful bid amount if he/she intends to do so. When he/she is awarded a successful bid, approximately 10% of the construction amount shall be changed.”

Around April 18, 2013, the Defendant made an illegal solicitation to Nonindicted 5 in relation to Nonindicted 1, Nonindicted 2, and Nonindicted 3, who are the managers of the former and present ○○ bid system, in relation to the foregoing construction, for the bid price of a specific construction work, to “the request for Nonindicted 5, who was aware of the information about the successful bid price from the manager of the ○○ bid system,” and Nonindicted 5, who delivered the above solicitation to Nonindicted 1 and received the successful bid price in the same manner as the criminal facts stated in the judgment by Nonindicted 22 Company, which was operated by the Defendant, and then delivered KRW 93 million from the Defendant to Nonindicted 1.

In addition, from around that time to June 2014, the Defendant provided KRW 547,60,000 to Nonindicted Party 1 in total seven times as indicated in [Attachment Table 1, 2, 4, 5, 7-9], along with Nonindicted Party 5, in return for committing the crime.

Accordingly, in collusion with Nonindicted 5, the Defendant made an illegal solicitation contrary to his duties against the ○○ tender system manager who administers another’s business, and provided money and valuables in return therefor.

2. Determination

A. 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 person's business obtains property or property benefits in exchange for an illegal solicitation in connection with his/her duties. A person who does not have such status can be the subject of the crime. The "person who administers another's business" as the subject of the crime of taking property in breach of trust refers to a person who is acknowledged to have a fiduciary relationship to handle the business in light of the principle of trust and good faith in relation with another person. It does not necessarily require that a person has a fiduciary relationship to handle the business in relation to another person. Further, the ground for taking property in breach of trust does not require that the business be entrusted, namely, the ground for taking property in relation to another person's business, can be caused by legal acts, customs, or business management, and it includes not only the entrusted person, but also the person who directly or indirectly deals with the business in relation to another person's business, but also the person who is within the scope of its own authority and is within 20360.

An act of giving and receiving the money obtained from a joint fraud or a crime of breach of trust is nothing more than an act of internal distribution of the money acquired from the crime among the co-principals (see, e.g., Supreme Court Decisions 84Do2599, Aug. 20, 1985; 94Do3346, Feb. 25, 1997; 2013Do7201, Oct. 24, 2013).

In addition, where a public official receives money from a construction business operator, etc. while entering into a private contract for the performance of a project or for the purchase of goods necessary for a public office, whether the money is deemed a bribe received in connection with a public official’s duties or if it is deemed that the money was embezzled by entering into a contract with a construction business operator, etc. with a prior agreement with the construction business operator, etc. shall be objectively assessed and determined by comprehensively taking into account the intent of the parties who give and receive the money, the content and nature of the relevant contract itself, the rate between the contract amount and the received amount, the amount of the received money itself, the appropriate profit that the construction business operator, etc. can obtain through the performance of the contract, the time and time and place of giving and receiving the money from the public official, and the method of giving and receiving the money directly received from the public official (see Supreme Court Decision 2005Do7112, Oct. 12, 2007).

B. Taking full account of the aforementioned legal principles and the following circumstances acknowledged by the evidence duly adopted and investigated by this court, the Defendant was involved in Nonindicted 1, etc., which was continued from around 2005, and paid the profits from the crime of fraud to Nonindicted 1 through Nonindicted 5. This is nothing more than an internal ex post facto distribution of the amount acquired by the crime between Nonindicted 1, etc., who operated the computer as joint principal offenders of the crime of fraud in the judgment, and the Defendant who mediated the successful bidder, and Nonindicted 5 and the Defendant who received the direct successful bidder. The evidence submitted by the Prosecutor alone is insufficient to recognize the Defendant’s act as a separate crime of breach of trust, and there is no other evidence to acknowledge it

1) The structure of each of the instant fraud crimes and the circumstances in which the Defendant provided money

① Around August 2005, Nonindicted 1 and Nonindicted 5 proposed that Nonindicted 1 and Nonindicted 5 participate in the crime by physical coloring the construction business operator who wishes to purchase high-priced bid information from Nonindicted 5, and that he would calculate and manipulate the successful bid price of the tender work site that Nonindicted 1 wants by the construction business operator, notify Nonindicted 1 of the bid price, and receive money from the construction business operator who fraudulently acquired construction price from ○○○○○. Accordingly, Nonindicted 1 and Nonindicted 5 conspired to commit a crime against Nonindicted 5 from the beginning. ② Nonindicted 5 proposed that the construction business operator who wants to obtain the successful bid information from Nonindicted 1 through the above public offering will be involved in the crime by deceiving Nonindicted 1 and by deceiving Nonindicted 1 and by inducing Nonindicted 1 to participate in the business of receiving the share of construction price from Nonindicted 1 and Nonindicted 24, and notified Nonindicted 1 to Nonindicted 6 of the fact that the remaining part of the contract was distributed to Nonindicted 1 and Nonindicted 3 in order.

2) The ratio of the money received by Nonindicted 1, etc.

① In the case of a unit price construction project to Nonindicted 5 in return for providing the winning information to Nonindicted 5, Nonindicted 1 demanded a certain percentage of the successful tender price for the construction project to be provided to Nonindicted 5, a high pressure of KRW 150 million, a low pressure of KRW 50 million for the construction project, KRW 2005 for the construction project, KRW 1% for the construction project in around 2006, KRW 3% for the construction project in around 207-201, KRW 5% for the successful tender price in around 2012-201, and KRW 5% for the construction project in around 2012-2014. In addition, Nonindicted 1 demanded a certain percentage of the successful tender price for the construction project to be provided to Nonindicted 5, Nonindicted 5, etc. ($ 5-7%) based on the successful tender price for the construction project to be acquired by Nonindicted 6, etc. to Nonindicted 1, Defendant, etc. (However, the Defendant demanded Nonindicted 5, etc. to receive some of his share of money from Nonindicted 14.

(iii) determine the amount of money received;

As above, the persons determined the internal distribution ratio between Nonindicted 1, etc., the computerized operator, and the construction business operators of the Defendant, etc., who received the intermediary information of Nonindicted 5, etc., and bid information, are not Nonindicted 1, but rather Nonindicted 5, etc., the brokers of Nonindicted 5, etc. or the Defendant, etc., and the victims of the crime of giving and receiving property in breach of trust, acting as above. (Although there are cases where a recipient of property in question requests to pay money first to a person who has suffered property in question and determines the scope thereof, it is common in general to determine the amount that the recipient of property in question considers appropriate according to his decision and make illegal solicitation.

4) Time interval between the time when Defendant et al. construction business operators received the construction cost from Defendant et al. construction business operators and Nonindicted 1 et al. received the money from Defendant et al. construction

① After offering bid information, Nonindicted 1 received money agreed upon by the broker, etc. of Nonindicted 5, etc. or the construction business operator through the broker, etc., or the Defendant, etc., to receive the said percentage of money from the construction business operator immediately after receiving the contract for the construction work. Since ○○○ is a public corporation, the payment of the construction cost is guaranteed so long as the broker, etc. and the construction business operator, such as Nonindicted 5, etc., paid to Nonindicted 1 may be deemed to have made advance payment of part of the construction cost, which is profit-making profit from the crime of fraud. ② Accordingly, even if the broker or the construction business operator received the construction cost from ○○ before receiving the construction cost from ○○, it does not constitute a money irrelevant to the construction cost solely on the ground that there were some cases where Nonindicted 1 received the money agreed upon from the broker or the construction business operator.

5) The intent of Nonindicted Party 1 and the broker, Defendant, etc. and construction business operators

① It appears that Nonindicted 1, rather than having received the price for illegal solicitation from construction business operators, he had an intention to participate in the fraudulent crime against ○○ through brokers, such as Nonindicted 5, etc., and to acquire the construction cost from ○○○ through the public offering. According to the public offering, Nonindicted 2, Nonindicted 3, Nonindicted 4, and Defendant, etc., the construction business operators, including Nonindicted 2, Nonindicted 3, and the broker and Defendant, engaged in functional role such as manipulation of the successful bid price by electronic means, provision of information, and participation in the bidding based on the successful bid price, thereby deceiving ○○○, thereby receiving part of the construction cost as the conclusion of the construction contract and the profits therefrom. ② It appears that the construction business operators, such as Nonindicted 5, etc. and the Defendant, etc., were willing to receive part of the construction cost in advance by agreement instead of recognizing that they would receive the price for illegal solicitation from ○○.

6) Whether to accept an illegal solicitation

In the crime of accepting property in breach of trust, illegal solicitation means a solicitation contrary to the social norms and the principle of trust and good faith, and in determining whether it is an illegal solicitation, the contents of the solicitation and the amount, form, and integrity of the administrator of the business, which is the legal interest protected by the law, should be comprehensively considered (see Supreme Court Decision 99Do2165, Apr. 9, 2002). As above, it is difficult to view that Nonindicted 1, etc., a computerized operator, conspired to commit fraud with Nonindicted 5, etc., the broker, Defendant, etc., in a successive manner, and the Defendant, who is the broker or the constructor of Nonindicted 5, etc., by reporting the act of deceiving ○ by illegal means, cannot be deemed to have made an illegal solicitation with respect to the duties of Nonindicted 1, etc

3. Conclusion

Thus, this part of the facts charged constitutes a case where there is no proof of crime, and thus, is pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of not guilty is publicly announced pursuant to Article 58

[Attachment]

Judges Hong Jin-jin (Presiding Judge)

1) The value-added tax shall be added to the estimated price (the amount that sets forth the scope of application of criteria for bid, method of contract, and qualification examination) and the multiple preliminary price (hereinafter referred to as “ multiple preliminary price”) shall be calculated on the basis of the basic price within a certain percentage of assessment.

Note 2) The tender system refers to a server that performs logic and dynamic functions in the tender system, and the results of various operations of the Sber are stored in the DB server.