[1] The meaning of "an act of undermining the fairness of a tender" in the crime of interference with a tender

[2] Whether collusion should be conducted between all bidding participants in order to cause interference with bidding (negative)

[3] The case where the act of paying the subscription money to the transferor of the business constitutes the crime of a provisional payment for business takeover by immediately withdrawing the subscription money from the registration of incorporation

[1] The obstruction of bidding is a dangerous crime that is established when the fairness of bidding is harmed by a deceptive scheme, threat of force, or other means, and the fairness of bidding does not require the actual appearance of the result. Here, the "act detrimental to the fairness of bidding" includes not only the act of causing the situation where it might interfere with fair competition, i.e., causing the situation where it might interfere with fair competition, but also the act of causing the situation where it might unfairly affect the reasonable price formation through fair competition.

[2] In order to obstruct the so-called collaborative act of manipulating the highest bidder or participating persons in the competition in collusion with each other to enter into an agreement that does not meet or exceed a certain price to become a successful bidder, or to waive the bidding, the so-called collaborative act of interfering with the bidding does not necessarily require any collusion with all bidding participants. Even if a collusion was made only with some of the bidding participants, it constitutes a crime of interference with the bidding as long as it is deemed that the participation in the bidding would impair the fairness of the bidding.

[3] The purpose of Article 628 (1) of the Commercial Code is to regulate the act of neglecting the intent of the law that intends to lose the company's capital. Thus, in case where the company's capital is paid in a form or temporarily without intent to secure the company's capital through the payment of the stock price, and the company deposited this money with the bank and withdraws the paid money immediately after the company completed the procedure of registration of incorporation or registration of capital increase after obtaining a certificate of payment of stock price, barring special circumstances where the company actually used it for the company, the crime of soliciting payment is established because the company's capital is not increased, and even if the company withdrawn the paid stock price immediately after its incorporation registration and paid it to the transferor for the purpose of acquisition of the company, if it is the most business takeover, and in fact, if it is nothing more than the refund of the stock price to the offerer of the stock price, it cannot be deemed as having been used for the company.

[1] Article 315 of the Criminal Act / [2] Article 315 of the Criminal Act / [3] Article 628 (1) of the Commercial Act

[1] Supreme Court Decision 94Do600 delivered on May 24, 1994 (Gong1994Ha, 1867) Supreme Court Decision 2002Do3924 Delivered on September 26, 2003 (Gong2003Ha, 2121) / [3] Supreme Court Decision 96Do2904 Delivered on February 14, 1997 (Gong197Sang, 850) Supreme Court Decision 2005Do856 Delivered on April 29, 2005 (Gong2005Sang, 902)

Defendant

Defendant

Law Firm Sejong, Attorneys Yu Chang-soo et al.

Seoul Central District Court Decision 2004No2904 Decided October 19, 2005

The appeal is dismissed.

1. As to ground of appeal Nos. 1 through 5

A. A. The crime of interference with bidding does not require the occurrence of danger to the fairness of bidding by deceptive means, threat of force, or any other means. Here, “act detrimental to fairness of bidding” refers to the act of causing a situation that is likely to interfere with fair competition, i.e., creating a situation that unfairly affects fair price formation through fair competition, and such act includes not only the act of determining the price, but also the act of impairing lawful and fair competition methods (see, e.g., Supreme Court Decisions 94Do600, May 24, 1994; 2002Do3924, Sept. 26, 2003). In addition, the case where a person who manipulates the highest bidder or participates in the bidding in collusion with another person, thereby causing interference with bidding, such as an agreement on or waiver of bidding to a certain person among them, does not necessarily necessarily require any collusion between the tender participants and all bidding participants, and thus, it does not necessarily constitute a interference with the fair bidding.

B. After compiling the adopted evidence, the court below acknowledged the facts as stated in its reasoning. The court below determined that among the enterprises whose bid for the goods storage box of this case was registered by the defendant, six companies, such as Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”), Nonindicted Co. 2 (hereinafter “Nonindicted Co. 2”), Nonindicted Co. 3, Nonindicted Co. 4, Nonindicted Co. 4 (name omitted), and (representative Nonindicted Co. 5), and (representative omitted), and (representative of Nonindicted Co. 6) conspired to the bidding for Nonindicted Co. 7 (hereinafter “Nonindicted Co. 7”) by suggesting that they would be competitive bidding, and thus, the company that actually compete in the above bidding would be deemed to be three companies, such as Nonindicted Co. 7, Nonindicted Co. 8 (hereinafter “Nonindicted Co. 8”), and Nonindicted Co. 9 (hereinafter “Nonindicted Co. 9”), the representative director of Nonindicted Co. 7, and the Defendant and Nonindicted Co. 108 (hereinafter “Nonindicted Co. 2”)'s bidding constituted a collusion with the defendant and the foregoing bidding.

Examining the records in light of the aforementioned legal principles and related evidence, we affirm the above fact-finding and judgment of the court below as just, and there is no error of law such as misconception of facts or misunderstanding of legal principles as to the obstruction of bidding by violating the rules of evidence or failing to exhaust all necessary deliberations as alleged in the grounds of appeal

C. The court below acknowledged the facts as stated in its reasoning after comprehensively taking account of the adopted evidence, and found the following facts: (a) as a result of the inspection of Nonindicted Company 11 (hereinafter “Nonindicted Company 11”) and Nonindicted Company 1 in the instant automatic local photographer tender at a price much more than the budget price for bidding, even if Nonindicted Company 1 was awarded a successful bid at a price exceeding six times the budget price for bidding, the Defendant, in fact, did not intend to comply with the collusion with Nonindicted Company 10, on behalf of Nonindicted Company 11, but did not intend to give up the said bidding; (b) in collusion with Nonindicted Company 10, Nonindicted Company 10 was actually controlled by the Defendant, concealed that Nonindicted Company 1 was the representative director of Nonindicted Company 1, and gave money to Nonindicted Company 12 as the value of rice gift, he could give up Nonindicted Company 1’s participation in bidding; and (c) determined that the Defendant and Nonindicted Company 110 did not respond to Nonindicted Company 10’s intent to negotiate, thereby, could have an effect on the Defendant 1111’s bidding.

Upon examining the records in light of the above legal principles, we affirm the above fact-finding and judgment of the court below as just, and there is no error of law such as misconception of facts against the rules of evidence or misunderstanding of legal principles as to the obstruction of bidding, as alleged in the grounds of appeal.

2. As to the grounds of appeal Nos. 6 and 7

The purpose of Article 628 (1) of the Commercial Act is to regulate the act of neglecting the intent of the law that intends to lose the company's capital. Thus, in case where the original purpose is to pay stock price in form or temporarily without the intent to secure the company's capital through payment of stock price and deposit this money with a bank, and immediately withdraws the paid money after obtaining a certificate of payment of stock price and completing the procedure of registration of incorporation or registration of capital increase after obtaining a registration of incorporation or a registration of capital increase, barring special circumstances that actually used it for the company, the crime of soliciting payment is established (see, e.g., Supreme Court Decision 96Do2904, Feb. 14, 1997). Further, even if the company withdrawn the paid stock price immediately after its incorporation registration and paid it to the transferor for the purpose of business takeover, if it is the most most, it cannot be said that it was used for the company's sake.

The court below found the defendant guilty on the ground that the defendant's total sum of KRW 1,00,00,000 and KRW 1,777,000,00, which was deposited into the account of Non-Indicted Party 15 and the account of Non-Indicted Party 7, was deposited into the account of Non-Indicted Party 2 and the account of Non-Indicted Party 14 among KRW 500,000,000, which was deposited into the account of Non-Indicted Party 15 and the account of Non-Indicted Party 7 among KRW 1,20,00,00,000, which was deposited into the account of Non-Indicted Party 15 and the account of Non-Indicted Party 7, which was established for the purpose of business, all of the defendant's own account of Non-Indicted Party 2, 14, and 777,000,000,000, which was managed by the non-Indicted Party 1 and the non-Indicted Party 15.

Examining the records in light of the above legal principles, we affirm the above fact-finding and judgment of the court below as just, and there is no error of law such as misconception of facts against the rules of evidence or misconception of facts against the rules of evidence or misunderstanding of legal principles as to the most transfer of shares and the constructive payment of share capital, as otherwise alleged in the

3. Conclusion

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

Justices Park Si-hwan (Presiding Justice)