[1] In a case where the receipt of money from a joint fraud by an accomplice is not a mere internal distribution act of the co-principal, whether the receipt of money constitutes a separate crime of giving and receiving money in breach of trust (negative)

[2] The standards for determining whether the nature of money is deemed to be a consideration for an illegal solicitation for another person's business, and the fraud is deemed to have been acquired through a joint fraud in a case where a person in charge of tendering affairs by a construction project ordering agency, in collusion with a construction business operator, knows the successful bid price in collusion with a construction business operator, and notifies the construction business operator of the contract so that the construction business operator may select a successful bidder and give

[1] Unless the receipt of money from a joint criminal act is merely an act of internal distribution of money or property profits acquired by a criminal act among co-principals, it cannot be deemed that the receipt of money constitutes a separate crime of giving and receiving property in breach of trust.

[2] In a case where a person who is in charge of tendering affairs at the construction project ordering place knows the successful bid price in collusion with a construction business operator and notifies the construction business operator of the bid price in an unjust manner so that the construction business operator may conclude a construction contract and the construction business operator may select a successful bidder, whether the nature of the money is deemed to be a consideration for illegal solicitation with regard to another person's business or to be a fraud by means of joint fraud should be evaluated and determined by objectively taking into account the intent of the parties who give and receive money, the contents and nature of the construction contract, 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 may obtain through contract performance, the interval between the time when the construction business operator received the contract payment at the ordering place, the time when the construction business operator delivered money to the person who is an accomplice, whether the money was paid by the construction business operator to the accomplice,

[1] Articles 30, 347, and 357(1) and (2) of the Criminal Act / [2] Articles 30, 347, and 357(1) and (2) of the Criminal Act

[1] Supreme Court Decision 84Do2599 Decided August 20, 1985 (Gong1985, 1282), Supreme Court Decision 2013Do7201 Decided October 24, 2013 / [2] Supreme Court Decision 2005Do7112 Decided October 12, 2007 (Gong2007Ha, 1796)

Defendant

Prosecutor

Attorney Cho Jae-ra

Gwangju High Court Decision 2015No372 decided November 12, 2015

The appeal is dismissed.

The grounds of appeal are examined.

1. Fraud is established by deceiving a third party to take property or obtaining pecuniary profits by inducing such act of disposal (Article 347(1) and (2) of the Criminal Act). The term “the network of fraud” in fraud refers to causing mistake as to the facts that serve as the basis for the judgment of the other party to take a disposal act, and the term “disposition” refers to a disposal act that delivers property to a deceptionr, etc. or gives pecuniary profits (see, e.g., Supreme Court Decisions 99Do484, Apr. 27, 2001; 2015Do13024, Jan. 28, 2016).

Meanwhile, if the receipt of money from a joint criminal act is not only an act of internal distribution of money or property benefits acquired by the criminal act among co-principals, the receipt of such money cannot be deemed to constitute a separate crime of giving and receiving property in breach of trust (see, e.g., Supreme Court Decisions 84Do2599, Aug. 20, 1985; 2013Do7201, Oct. 24, 2013).

In addition, where a person who is in charge of tendering affairs of the construction project ordering agency finds out the successful bid price in collusion with a construction business operator and notifies the above construction business operator of the bid price, thereby causing the conclusion of the construction contract and allowing the construction business operator to select the successful bid price as a successful bidder, whether such money is deemed to be a consideration for illegal solicitation with regard to another person's business, or whether it is deemed to have been obtained through joint fraud shall be objectively assessed and determined by comprehensively taking into account the intent of the parties who give and receive money, the contents and nature of the construction contract, the rate between the contract amount and the contract amount, the amount of the received money itself, the appropriate profit that the construction business operator can obtain through the contract execution, the time interval between the time when the construction business operator received the contract price, the construction business operator's receipt of the contract price, the money delivered to the accomplice, and the place and method of receipt, etc. (see Supreme Court Decision 2005Do7112, Oct. 12, 207).

2. The lower court found Defendant 1 guilty of the facts charged, such as (1) Nonindicted 1’s completion of the contract for the construction project ordered by the ○○○○○○ System by manipulating the open bid program through Nonindicted 2, 3, and 4 in charge of the maintenance and repair of the bid system of the ○○○○ System; and (2) Nonindicted 1’s completion of the contract through Nonindicted 5’s announcement to the Defendant and construction business operators; and (3) Defendant and other construction business operators made the company that they operate select as the successful bidder of the construction project ordered by the ○○○○○ System through this use of it; and (2) he received money from Nonindicted 1 and received money in the name of the construction cost; and (3) Nonindicted 1 gave money to Nonindicted 2, 3, and 4 again distributed it to Nonindicted 4; and (4) Nonindicted 1’s receipt of money from the construction business operators, including the time and timing of the Defendant’s receipt of money from the ○○○○ System’s ex post facto auction, on the grounds that he received money from the construction work price.

3. However, according to the records, the contents of the act of deception by the Defendant and Nonindicted 1, etc. are not only the price determined in the procedure where the final successful bid price was maintained in secret, but also the bid price invested by the bidder is a voluntarily selected price without any unlawful act. Once the bidder was selected as a successful bidder, it does not intend to cause mistake as to whether he/she has intent and ability to perform performance of performance under the contract, or as to the contents or quality of the benefits required under the contract, such as faithfully performing the construction work after the completion of the construction work, but it does not mean that the Defendant’s intent will perform the construction work after the successful tender was executed by such unlawful means as above. In the process of performing the construction project awarded by such unlawful means as well, it does not mean a separate act of deception as to the contents or quality of the construction, and each construction project was selected as a successful bidder in each construction project as stated in the judgment of the court below and each bidder including the Defendant operating company who concluded the construction contract with the ○○ Construction and the Defendant et al.

Examining these facts in light of the legal principles as seen earlier, the disposal of the ○○○○○ Construction by deception, such as the Defendant and Nonindicted Party 1, does not pay the construction cost, but enters into a construction contract with the Defendant that received a successful bid from Nonindicted Party 1, etc., by determining the successful bidder. It is reasonable to deem such disposal to have been obtained by the Defendant and Nonindicted Party 1, etc. as an unproperty interest in the amount of “the status of the contracting party who entered into the construction contract with

Nevertheless, the lower court erred by misapprehending the legal doctrine on the disposal of fraud, on the premise that the Defendant and Nonindicted Party 1, etc. acquired construction cost, not property benefits, such as the status of a contracting party, from ○○○○○ Construction, thereby constituting a crime of misappropriation.

However, examining the circumstances acknowledged by the court below in light of the above legal principles, it is reasonable to view that the money received by Nonindicted 1, etc. from the construction business operators, etc., such as the Defendant, etc., is not merely an internal distribution of part of the property profits acquired or to be acquired in the near future by joint fraud, and it is reasonable to view that there is a lack of money that some construction business operators paid in the event that some construction business operators did not enter into a contract would not reach the contract, and thus, it does not change on the ground that there is a lack of money to pay.

Therefore, the lower court’s aforementioned error did not affect its conclusion, and with the same purport, determined that the money that the Defendant delivered to Nonindicted Party 1, etc. was merely a distribution of profits among the accomplices and did not constitute a crime of giving property in breach of trust separately is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the crime of giving property in breach

4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok (Presiding Justice)