2015Gohap716 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

A

The Lee Jin-hun (Public Prosecution) and Kim Tae-tae (Public Trial)

Law Firm B

Attorney C, D, and E

May 19, 2016

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of the facts charged

【Basic Facts】

On April 19, 200, the Defendant established H with F and G, etc. for the purpose of software development, manufacturing, etc., and participated in the online electronic voting business of I Co., Ltd. around around 2006, the Defendant carried out the same attitude of completing the development of security technology necessary for the aforementioned business, such as the completion of the development of the technology necessary for the aforementioned business, and the completion of the development of the technology, including, but not limited to, the name of the Defendant (which means the technology to ensure the security of electronic ballot boxes by dividing and keeping the ballot boxes to several managers using the ballot boxes). The Defendant: (a) the initial signature (which means the technology to ensure the secrecy of voting information (the voting and the contents of voting) stored in the electronic ballot box after coding the contents of the ballot papers; and (b) non-Delegation of voting information (which means the technology that can verify whether the voting information (the voting and the contents of voting) by dividing it in part to the server and voters; (c) and (d) has failed to complete the development of the technology and has been abandoned its business around around 207.

After that, the Defendant continued to engage in the online electronic voting business, but in fact closed down H due to lack of profit-making business, and established M&A (hereinafter referred to as “M”) around August 26, 201 with L of the chairman of the Labor Relations Commission of K (hereinafter referred to as “K”), and around July 201 and November 201, the Defendant was invested in the aggregate of one billion won from KTF capital and acquired a patent related to online electronic voting (hereinafter referred to as “patent security technology of this case”), such as key division, concealment signature, and delegation, around February 2012. However, in order to apply this technology to the electronic voting program, separate applicable technology and development costs are necessary, and it is possible to accurately verify the technical ability of the aforementioned company after stabilizing the application of the program, but it is possible to recognize the technical ability of the aforementioned company as 20 billion won under the circumstances in which it was actually difficult to supply the technology of this case (hereinafter referred to as 100 billion won under the circumstances of supply of the technology of this case).

On the other hand, at that time, the Defendant proposed the online voting business against the O electronic election manager and K K's business team manager, and around March 2013, K submitted a "online electronic voting service proposal" to the effect that K will provide a platform and a solution meeting the four principles of the election system and the guidelines for online voting by applying the patent security technology of this case held by M., and that K will provide an online voting service. TheO adopted the proposal and distributed the report to the effect that K will provide a "PP" online voting service through high-quality IT technology and around June 2013.

However, the Defendant and M&C did not develop the technology that applied the patent security technology of this case to online electronic voting, and did not apply and load the patent security technology of this case to P system under the implied consent of Q (the Defendant and the same person) due to lack of development human resources and capital.

O which has not properly verified and recognized this fact is to ensure the technical safety and reliability of online voting through a system that meets the four principles of the election system and the guidelines for IT online voting (i.e., accuracy: all legitimate valid votes are accurately compiled; (ii) it is necessary to verify the result of the voting to prevent forgery; (iii) it is necessary to verify the result of the voting; (iv) it is not necessary to block interference by illegal voters; (iv) it is not allowed to participate in the voting; (v) it is possible for voters who have no right to vote; (vi) it is possible for voters to participate only once in the voting; (vi) it is confidential: ensuring the confidentiality of voting results with voters; (vii) it is stated to the same effect as a P Public Relations poster distributed in the name of O.

[Facts of Prosecution]

When the P service begins on October 2013, the Defendant neglected the O’s notice on the P website or the distribution of promotional leaflets, which is known as if the P service satisfies both the four principles of the election system and the guidelines for IT online voting, and made the general public, including the Victim S Co., Ltd. (hereinafter referred to as “victim Co., Ltd”) trust, by being aware that the patent security technology of this case was entirely applied and not listed in the P system.

N around 2013 and around 2014, in the course of business restructuring due to losses and losses, N continued to merge M due to lack of sales or establish a plan to reduce M’s business department, which continuously occurred due to lack of sales despite the commencement of P service.

The Defendant, upon N’s merger of M or reduction of M’s business division, decided to directly color the company that will take over M in consultation with the other N’s representative, and accessed the representative director of the victim company that had been known as a normal high school line, in consultation with the other N’s representative, with the concerns that the instant patent security technology would either waive or lose the leading right, such as “T,” which is an electronic text service being developed under the lead of G, which is neither the application of the patent security technology of this case.

around July 17, 2014, the Defendant sent to the above V an online voting service operation contract entered into between theO and K on October 2, 2013, and a letter of company introduction on July 2014 to M has technical capabilities at a global level, such as patent security technology of this case, and provides KO with online electronic voting initiative using the patent security technology of this case, as well as send e-mail to the above V to the victim's office located in Gangnam-gu Seoul Metropolitan Government to the effect that "the patent of this case is equivalent to X-gu, the P service is normally progress, and the e-mail of this case was delivered to the victim's e-mail security service 20 billion won, and the e-mail of this case was delivered to the above V to the victim's office at the victim's office located in Gangnam-gu, Seoul Metropolitan Government to the effect that it can be seen as satisfying the core value of the PY 1, 2014 and the e-mail security technology of this case."

However, the Defendant and M’s development team did not have developed the technology to apply the instant patent security technology to online electronic voting, and the P service was commenced under the situation where there was no intention to develop the technology in the absence of O’s personnel, and the information and voting value of voters were stored in the database, and the database manager was vulnerable to security to manipulate the voting result by changing the voting value during the voting period. However, there was no means to verify whether the voting value has been modified or not, and thus, it was provided to the user institution without meeting the four principles of the election system or the guidelines on IT online voting. Moreover, the Defendant was only related to the electronic signature of the instant patent security technology, which was supplied to the Z on August 2013, 201, and it was not related to the instant patent security technology, and it was also related to the instant new products, which were supplied to the Small and Medium Business Administration from around 130 billion won to around 214.201.

Nevertheless, on December 31, 2014, the Defendant, by deceiving the representative director V and Y of the victim company as above, entered into a contract with N to take over the shares and the management rights of the corporation, which takes the purchase price of KRW 1.3 billion in the name of AB (hereinafter referred to as "AB"), a subsidiary company of the victim company (hereinafter referred to as "AB"), and had N pay KRW 1.0 billion out of the purchase price.

As such, the Defendant, by deceiving the representative director, V and Y of the victim company, had N acquire the pecuniary profit of KRW 1 billion from the victim company through AB, its subsidiary company.

2. Determination

In light of the following circumstances acknowledged by the evidence duly adopted and examined by the court, it is difficult to view that the evidence submitted by the prosecutor alone was sufficient to prove that the Defendant committed deception as stated in the facts charged against the representative director V or chief Y of the victim company, and accordingly, the Defendant caused the conclusion of the contract to acquire the instant shares and the management rights, and there is no other evidence to acknowledge it otherwise.

A. It is difficult to view that the Defendant committed a deceptive act against V orY.

1) Since the commencement of the P service, M had been actually holding the instant patent security technology.

A) The patent security technology of this case had already been developed by M’s development team before the commencement of the P service, and had been in the form of Rabler to the basic engine from the beginning.

B) M acquired five patents from 2012 to 2013 regarding measures to strengthen security in online electronic voting such as the instant patent security technology.

2) The fact that M had not gone through a master for applying the patent security technology of this case to the P service is an agreement with the intention orO as the operating entity of the P service.

A) At the request of theO, M did not apply the key division technology of the patent security technology of this case to the P service in order to prevent the occurrence of a problem that if part of the managers of the P service user who kept a ballot box box in the private sector where the legally uncomponible ballot counting is refused to provide the ballot-counting box kept by himself/herself against the sudden ballot-counting, M did not apply to the P service, and if an election is opened by using the P service, M could not choose key division items on the screen indicated by the manager of the user agency.

B) On June 2014, at an election of the AC Association, which was conducted using P services, the O provided a certificate of completion of voting related to the non-Delegation technology at the request of the foregoing Association, and the problem arose. On July 3, 2014, theO decided not to provide the above certificate of completion of voting through a meeting held by the P Service-related parties, such as the Defendant and K, and Q. M did not apply the non-Delegation technology related to the above certificate of voting itself to the P Services according to the O’s decision.

C) The Cerma to apply the patent security technology of this case to the P service was completed by F as a single work within a period not exceeding one month after the petition of V on the instant case. If the O requested for a change in the P service development process, M was immediately capable of applying the patent security technology of this case to the P service.

D) Whether the patent security technology of this case is applied to the P Services seems to have not been an important issue from the perspective of theO.

① P service was anticipated to be used mainly in the election of private areas at the time of its commencement, and there was no company, other than K, to bear the cost of developing the P service. In such a situation, the O started the P service by applying the security measures at a certain level, such as the operation of exclusive dedicated fire wall, intrusion prevention system, access control system, etc., system connection and access control system, confirmation of records, various security systems managers, and separation of access authority from the database managers and database managers, and then gradually expanded its users, and applied additional security measures, such as the instant special security technology.

(2) TheO does not specify the level of security measures to be taken by K and M, and the project proposal submitted by K to K is not included in the terms of the contract for the operation of online voting services on October 2, 2013 between theO and K for P services.

③ Until August 13, 2015, P Services operated in a state where the patent security technology of this case is not applicable, but there was no security-related problem, such as drilling of the security system or alteration of voting information.

④ Unlike the concerns of the victim company, theO did not terminate the above online voting service operation agreement with K on the ground that the patent security technology of this case is not applied to the P service, or did not impose the legal responsibility on K or M on it.

3) The acquisition of the instant shares and management rights by only the statement of V and Y cannot be readily concluded that the Defendant directly induced V and Y with regard to the application of the patent security technology of this case at the time of the contract.

A) Although V and Y stated to the effect that the application of the patent security technology of this case was an important issue at the time of the contract, there is no objective data to support the statement. There is no provision in relation to the application of the patent security technology of this case in anywhere to the instant agreement for acquisition of the equity and management rights, and there is no provision in other annexed documents. V and Y did not take any measures such as verifying the application of the instant equity and management rights even after the transfer of the equity and management rights.

B) The fact that the patent security technology of this case is not applicable to the P Services seems to have been well aware of the F, G, K's Q, AD, etc., as well as the F, Q, etc., for which the Defendant or M had been employed, and at least AE, who had been in charge of the practical affairs related to the P Services inO, was aware that the key division function among the patent security technology of this case is not applicable to the P Services. As such, it is difficult to readily believe that the Defendant directly made a false statement about this point in the situation where many people related to the P Services were aware that the patent security technology of this case is not applicable to the P Services (the fact that M was actually in possession of the patent security technology of this case, and that it was applied to the Services without bearing a big cost).

C) If the Defendant said that the patent security technology of this case is applied to V or Y for the P service, it seems that the Defendant did not immediately recognize that the patent security technology of this case is not applied to V through e-mail around June 22, 2015, prior to the filing of a petition and investigation regarding this case.

4) It is difficult to deem that the Defendant included any content different from the fact in various documents sent by e-mail to V or Y.

A) The Defendant’s various documents sent by e-mail to V around July 17, 2014 (the introduction of MM companies and the current status of online voting global market, etc.) include the content that “AF,” which is an electronic voting engine, is based on the patent security technology of this case developed by M, and does not include any content that the patent security technology of this case is applied to P services.

B) The documents sent by the Defendant by e-mail to V around September 19, 2014 include the contents concerning the patent security technology of this case in the items of "online voting introduction, P", "6. online voting security technology" and "7. online voting principal technology" among the above documents. However, unlike the above items 6.7 items, in the items of "8. online voting (P) service flow diagram" and "9. online voting (P) application cases," the above documents clearly state that M carries the patent security technology of this case in relation to online voting, and it is difficult to conclude that M is also subject to the patent security technology of this case in relation to online voting.

C) Of the e-mail sent by the Defendant to Y around November 3, 2014, the part stating “the supply of core engines and the establishment of a system to the Z Electronic Total System” in 2009 also, as long as M was actually in charge of the establishment of the above electronic shareholders’ meeting system, there is no special fact.

5) Contents distributed by O either posting on the P homepage with respect to the P service or on promotional leaflets are only prepared by O’s employees under their responsibility, not written by the Defendant for the purpose of deceiving victims, companies, V, and Y.

6) There is no reason for the Defendant to deception the victim company, V, or Y.

A) As seen earlier, M actually owned the instant patent security technology, and had the ability to apply the instant patent security technology to the P service. In fact, M completed a series of complementary measures to apply the instant patent security technology to the P service from one half of the month following the petition of V on the instant case until August 13, 2015, and provided K with the P service normally. This degree of cost input has no reason to make a false statement to V and Y in the situation where it was possible to apply the instant patent security technology to the P service.

B) The Defendant did not obtain economic benefits through a contract for acquisition of the instant shares and management rights. Since the subject who transferred M shares and management rights to AB was not the Defendant but N, the subject who acquired the acquisition price through the performance of the contract was not the Defendant but the party who was the party to the contract. The Defendant did not receive the money separately from the other party in relation to the contract.

B. It is difficult to view that V, by deceiving the Defendant from the Defendant, caused the conclusion of the instant share and acquisition by transfer of management rights.

1) At the time of the contract for acquisition of the instant shares and management rights, V was determined as an important factor to conclude a contract that M is continuously generating certain sales through the P service, and the application of the instant patent security technology seems not to have been a particular issue.

A) The Defendant, F, and G have consistently stated that: (a) the instant equity and management acquisition by transfer in the prosecution investigation process and this court did not ask whether the patent security technology of this case is applicable to the P service at the time of the conclusion of the contract; and (b) the reasons therefor; and (c) did not specifically explain it.

B) V and Y argued that the patent security technology of this case is applied to the P service in the process of concluding the contract. However, V and Y did not make efforts to confirm the application of the patent security technology of this case in the process of entering into the contract, and they did not make a reasonable explanation, such as assertion that it is due to the trust and good faith of the Defendant.

① V and Y did not specify the application of the instant patent security technology to the P Services in documents, such as the M management right prior agreement, the comprehensive agreement, and the acquisition agreement, and did not obtain a written confirmation from the Defendant.

② At the time of entering into a contract, V and Y did not formally ask K orO about whether the patent security technology of this case is applied to the P service in the course of entering into the contract.

③ V and Y did not verify the application of the instant patent security technology by means of the actual verification of the license code of the P Services in the process of the verification process to conclude the contract even with the acquisition of the instant equity and management rights.

2) There is sufficient room to view that the instant share and management transfer agreement was concluded by evaluating V’s business feasibility in addition to P services from a long-term perspective.

A) On March 2015, 2015, where V had the instant equity and management right acquisition prepared for the purpose of attracting external investments after the conclusion of the contract, the M M M M M business opening indicates the main business areas of M, and two online voting services, which are online online voting business, and the online survey business. However, as of the year 2015, the said business opening statement states approximately KRW 42.5 billion in sales related to online voting business for the next five years, while the expected sales related to online survey business are written as KRW 273 billion in excess of that six times in the online survey, the said business opening statement also indicates that M will enter the global market via T. In addition, the said business opening statement shows that M will enter the global market.

B) Around May 22, 2015, V made a statement that M shares and acquisition of management rights in M M M have been reported to the value of T. Accordingly, V made a statement that he/she would have been able to continue the development of T by attaching F and G with the intention of withdrawing M at that time. However, this is nothing more than a self-recognition that the development of T and the creation of profits therefrom was important.

C) Even in a situation where there was no external investment attraction after the acquisition of M shares and management rights, V, in order to develop T, excluded the manpower and the place of business related to the P service and sought a demand from G to separately subsidize development costs exceeding KRW 30 million every month. Y also argued that G, who has developed T, would use the amount of KRW 3 billion out of the investment amount, would be used for the development of T.

3) Unlike the expectation at the time of acquisition of M shares and management rights, V had experienced serious financial difficulties from around April 2015 due to failure to attract external investments. There was a dispute between N and N as a result of the violation of M&A’s obligation to implement capital increase with respect to M& (Article 5 of the Comprehensive Agreement between the victimized Company and N on December 15, 2014) and the obligation to obtain written consent from N at the time of waiver of M’s business (Article 7(5) of the Pledge Agreement between AB and N on December 31, 2014). In order to overcome these circumstances, it is difficult to avoid the possibility that V’s share and management right of the instant patent security technology could be subject to non-application of the instant patent security technology, which was not a major issue at the time of the contract.

3. Conclusion

Thus, the above facts charged against the defendant constitute a case where there is no proof of crime, and thus, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment is publicly announced pursuant to Article 58

It is so decided as per Disposition for the above reasons.

Judge Choi Chang-young

Judges Yang Sung-sung

Judges Nam-Ma