2017Do14472 A. Fraud

B. Attempted Fraud

(c) Interference with business;

(d) Interference with bidding;

A

Defendant

Law Firm EF

Attorney EP

Law Firm EH

Attorney EI, E Q, ER

Seoul Northern District Court Decision 2017No969 Decided August 25, 2017

February 8, 2018

The judgment below is reversed, and the case is remanded to the Seoul Northern District Court.

The grounds of appeal are examined.

1. As to the fraud related to advance payment

For the reasons indicated in its holding, the lower court, on the grounds indicated in its reasoning, committed fraud related to advance payment.

Among those, the Court found the Defendant guilty of the “U” contract with the victim H. The reasoning of the lower judgment is relevant to the relevant law.

In light of Li and the evidence duly admitted, the appeal by the court below is dismissed.

In the absence of necessary deliberation as alleged by the parties, the freedom violates logical and empirical rules;

Violation of the procedure of examination of evidence against the misunderstanding of facts beyond the limit of the due diligence; or

In other words, there is no error.

2. As to interference with bidding

Interference with a tender shall be established in the case of impairing the fairness of the tender by a deceptive scheme, threat of force or other means.

There is no need for the unfair appearance of the result as a dangerous crime.

Here, "act detrimental to the fairness of a tender" is likely to interfere with fair free competition.

such an act does not constitute an unreasonable impact on an adequate price formation.

include acts that hinder the formation of fair competition schemes, and all persons participating in the tender.

Even in cases where collusion has been effected only between parts, other than the source, the obstruction of bidding may be established.

(See Supreme Court Decision 2008Do11361 Decided May 14, 2009, etc.)

The court below offered bid price to a business entity managed by the defendant through prior agreement.

The act of having the company participate in the tender at the price provided by the defendant is fair.

The lower court determined that it constitutes a crime of interference with bidding as it harms competition methods. The aforementioned legal doctrine and the enemy.

In light of the evidence duly adopted, the judgment of the court below is just, and the award is justified.

As alleged in the ground of appeal, there were no errors by misapprehending the legal principles on the obstruction of bidding.

3. As to fraud related to violation of direct production

(a) No. 11, No. 3 of the Schedule of Crimes in the judgment of the first instance (hereinafter referred to as “the Schedule of Crimes”);

21 As to each tender described in

1) The summary of this part of the facts charged is as follows.

A competitive bid for manufacturing goods ordered by a procuring entity through the Public Procurement Service or the Defense Acquisition Program Administration;

corporation with intent to directly produce goods subject to the tender and capacity to participate in the tender;

The successful bidder shall supply goods to which the goods directly produced are to the procuring entity.

The Defendant (hereinafter referred to as “DB”) operated by AX and Q Co., Ltd. (hereinafter referred to as “DB”).

Operators of enterprises, such as BC, which operate Q(s) and companies in China by the defendant

An end-user institution as if the successful bidder directly produces the goods manufactured at a low price

5-10% of the successful tender price shall be paid by the procuring entity after being supplied and supplied by the procuring entity.

B, the remainder was raised in order to have the defendant.

A) As to the tender No. 11 per annum of the crime sight table of the instant case

DB AX operated on April 9, 2015 by the regional police agencies of Ulsan Metropolitan City, Ulsan Metropolitan City, where the victim is an end-user institution.

The price of KRW 14,770,000 in the tender of 'EJ' publicly announced through the Public Procurement Service shall be selected as the successful bidder.

DB directly by the Defendant’s multi-functional vests and signal bars manufactured by using a company in China.

As if produced, goods shall be supplied to the Ulsan Metropolitan City Police Agency and on June 23, 2015;

It received 6,100,000 won and acquired it by fraud.

B) As to the tender No. 21 per annum of the crime sight table of the instant case

around June 16, 2015, the Cheongbuk Provincial Police Agency, which operates Q Q, shall procure by the victims of the Cheongbuk Provincial Police Agency.

The price of KRW 33,284,820 in the ES tender publicly announced through the agency shall be selected as the successful bidder:

as if Q directly produced products manufactured by a senior company located in China

Delivery to the North Provincial Police Agency and payment of KRW 33,284,820 as the price for the goods;

The defrauded obtained this.

2) The facts charged above are all the goods subject to bid at each of the above bids, which the defendant fallen.

As if DB or Q directly produced by the goods, the goods are supplied to the end-user institutions and the goods are supplied to them.

(1) The records reveal the following: (a) The price of the goods is paid for the goods and acquired them by fraud:

‘The quantity and specification of goods subject to a tender at the public tender notice on the tender tender of the document No. 11 at each year of the crime sight table;

'The Multifunctional 250 man, 1,020 mother and child, 189 signal classes', and 'the qualification to participate in the tender' was 'the country.

Article 12 of the Enforcement Decree of the Act on Contracts with Private Interest and Article 14 of the Enforcement Rule of the same Act

Article 9 of the Act on Promotion of Purchase of Small and Medium Enterprise Products and Development of Market Support and the above Act

The certificate of direct production under Article 5 of the Enforcement Rule (it is issued by the day before the date of opening the inspection).

of the product in possession of the product, and the participation in the bid of the product in the section above is limited to the product in the section above.

whether the possession of the above direct production certificate is required is not specified.

(2) 14,770,00 won in total as a successful bidder after the DB participated in the above bidding.

A contract for goods subject to tendering has been concluded, and a description of "contract goods" as part of the contract.

in letter "2.5 million won in total for 2.5 million won in total for goods) 1,020 mags. 8.67 million won in total for goods.

b) Signals for traffic control (EK) 189 (total value of 1.1 million won) are the detailed details of the contract.

3. Lighting Lightings and traffic control signallings among the goods subject to the tender

After completion of goods, 6,100,000 won in total was paid to DB, but the mother is supplied.

under this section, the Ulsan Metropolitan City Police Agency has terminated the contract on the DB

In fact, No. 1. On the other hand, the subject of tender tender at No. 21 per year of the crime schedule of this case.

"Items and Quantity of Goods" shall consist of 835 Mada 172 Madididi (LED), ELD (LED) Hudi (LED)

Hash 251, X 61, Maf168, Maf19, Mafla 405, and Mafla 405;

The term "qualification for participation" means the registration of qualification for participation in the Integrated Electronic Procurement System (Public Notice No. 2014-4 of the Government Procurement Service).

5310310101(Namsung) as a product to be manufactured shall have the detailed name number 53101,

The fact that it was limited to a company registered as a provisional contractor, and 5 the Q has participated in the above bidding and has been selected as a successful tenderer.

A contract for the goods subject to the tender was concluded in 33,284,820 won in total, and any remainder thereof.

6,700,000 won for the goods on 835 sheet, and 6 the goods subject to the bid

All were supplied, and the total amount of KRW 33,284,820 was paid to Q.

In light of these facts, DB, a successful bidder, is the goods subject to each of the above bids.

B. Goods supplied by Q Q to the victim end-user institutions, the victim end-user institutions

There is room to include articles that do not require direct production.

If so, the court below directly produces the successful bidder with regard to this part of the facts charged.

shall have been deliberated and determined by clarifying the scope of the goods subject to the tender.

Nevertheless, the court below, without taking such measures, held each bid in determining this part of the facts charged.

The judgment of conviction on the whole of the facts charged on the premise that the whole of the goods are directly produced.

Therefore, the lower court erred by misapprehending the legal doctrine on the establishment of fraud, thereby necessary.

The lower court erred by failing to exhaust all necessary deliberations. The ground of appeal assigning this error is with merit.

section 1.

B. As to the remainder

For the reasons indicated in its reasoning, the lower court: (a) of the instant facts charged, the instant crime in the instant case

the violation of direct production other than the parts on each tender listed in paragraphs 11 and 21 of the

The lower court found the Defendant guilty on all of the parts of the subsequent fraud and attempted fraud. The reasoning of the lower judgment is as follows.

Examining the relevant legal principles and evidence duly admitted, the lower court’s determination is justifiable.

2. As alleged in the grounds of appeal, the lower court did not err by misapprehending the legal principles as to necessary deliberation.

The requirements for establishment of fraud, which goes beyond the bounds of the principle of free evaluation of evidence.

The lower court did not err by misapprehending the legal doctrine regarding the foregoing.

4. Scope of reversal

Direct production of each tender listed in No. 11 and 21 of the crime sight table of the judgment below of the court below

As to anti-related fraud, there are grounds for reversal, and the remaining guilty part.

Since a single sentence was imposed in relation to concurrent crimes under the former part of Article 37 of the Criminal Act, the judgment of the court below is justified.

It is inevitable to reverse all.

5. Conclusion

The lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion;

It is so decided as per Disposition by the assent of all participating Justices.

Supreme Court Decision 200

Justices Kim Jong-il

Justices Cho Jae-sik in charge