(영문) 서울중앙지방법원 2017.8.31. 선고 2017고합539 판결

The Defendant served as a civilian military employee in the H flight team for up to December 30, 209, and entered the KJ on November 19, 2012 (hereinafter referred to as “J”) and takes charge of assembly of M (hereinafter referred to as “M”), inspection and delivery of the Agency for Defense Technology and Quality, and A/S affairs, as technical experts belonging to the K of the K of the K of the K of the K of the K of the K of the K of the K of the K of the K of the K of the K of the K of the K of the K of the K of the K of the K of the K of the K of the K of the K

B. On December 29, 201, J entered into a supply contract with the Defense Acquisition Program Administration on the summary that "the supply price of M 54 won by October 30, 201 is to be 23,535,492,192" by accessing the J head office N in Sung-si, the Defense Acquisition Program Administration and the Defense Acquisition Program Administration entered into a supply contract with M 54 won.

The general terms and conditions of the above contract shall comply with the provisions for the delivery date, specification, inspection, etc., and the specifications of all goods shall be a new product suitable for the purpose of purchase (Article 13), and through special terms and conditions of the contract, an inspection shall be conducted in accordance with the provisions prescribed by the Agency for Technology and Quality Assurance (hereinafter referred to as the "Agency for Technology and Quality Assurance"), which is the quality guarantee agency, for the production of one prototype, and for the subsequent production of the goods after the inspection of the performance of the equipment source (Articles 7 and 47(1), and for the application of the product, all technical materials shall be the latest date fixed at the time of conclusion of the contract, and shall meet the specifications of this letter and the company.

(Articles 31 and 50)

In addition, both sides set the detailed criteria for passing the performance test, such as temperature, pressure, output, durability, and the permissible range of electric system, as well as the size and weight of the contract special terms and conditions (Article 50) through the 's specifications of contract terms and conditions' (Article 50). They requested the inspection of completed goods which passed the self-inspection under Article 18 of the Rules on National Defense Quality Management, and requested the inspection by submitting them to the source of the flag, and the 4 M which passed the audit by October 30, 2013 to the PFlight, and the remaining 50 copies are to be supplied to the designated units later.

2. Criminal facts;

In addition to the above K, L, etc., the Defendant did not undergo a reliable durability test for the test of the mass products in a normal manner, and did not undergo a performance test for each mass product by submitting a false test report prepared by MM hours in connection with the performance test for the mass products and passing through the performance test or replacing a name plate to some M, the Defendant, as if he completed the performance test for each mass product normally, had the staff in charge of the Defense Acquisition Program Administration, deceiving the victim in charge of the Defense Acquisition Program Administration to receive 2,670,000,000 as a advance payment, and had the J receive from December 31, 2013 a total of KRW 13,134,674,810 as the price for the goods against M 54 as shown in the attached list of crimes (1) from that time until December 31, 2013.

Accordingly, the defendant, in collusion with the above K, L, etc., by deceiving the victim to receive the property from the J, thereby deceiving the victim.

A. Fraud related to performance testing of a prototype

The Defendant, along with the foregoing head office K and office L, received from J head office located in N in Ssung City from the R affiliated with "Korea Es. S. S. S. Q, an international certified testing institution," and passed a test for reliability and internal composition of a prototype on May 25, 2013, when the test was conducted on May 11, 2013, which was 358 hours after the date of the test was 358 hours, due to the damage to other M, the Defendant changed the test to other M., as if the prosecutor was conducted on the normal reliability and internal composition of the test product, and passed the test for reliability and internal composition by receiving the test report in the name of Q. S. S. S. K., a testing institution, from the date of the test.

(b) Fraud related to performance inspections by mass products;

1) On September 13, 2013, the chief of the headquarters, K, technical experts S, and team members received performance testing for each mass product of M 12, including 8 p.m. (J: 6~13) on October 2, 2013, and on October 2, 2013, the quality testing for each mass product of M 12, including 6 p.m., which had already passed the performance testing, Defendant 3), the chief of the headquarters, K, technical experts, and team members attached 15 p.m. (6 p.m., which had undergone a normal performance testing, and supplied 10 p.m. 15 p. 16 p.m., 15 p.m. (6 p.m.) on October 15, 2013. 6 p.m., as if they had already passed the performance testing, 15 p.m., 16 p.m., 200.

In collusion with the above K, etc., the Defendant, from that time until December 30, 2013, transferred and supplied M’s name plates, etc., which passed the performance test as above, to an attempted inspection, and supplied 17 copies of the attempted inspection, as shown in the attached Table (2), to the gases of M which passed the performance test, by attaching a name tag, etc. of the attempted inspection to undergo a performance test again.

2) On October 2013, K of the Director General prepared a false report on the results of the environmental examination, at the office of the J head office located in the Staff Hanman on the 14th day of October, 2013, the fact regarding the long voltage stability test among the test report of M 14 "M test report" was falsely stated as if the test was conducted for 4 hours after the completion of the test, and submitted the results under the performance test of mass products.

From that time until December 23, 2013, the above K supplied 41 M 41 by submitting a false test report, such as the list of crimes in attached Form (3).

Summary of Evidence

1. Partial statement of the defendant;

1. Some statements among the suspect interrogation records of the prosecution against the defendant and the defendant, L, K, and X (including each statement among the examination records of the nature of S, T, Y, R, and Z);

1. Each police statement on AA, AB, AC, AD, T, Y, S, Z, AF, and R;

1. Results of the first announcement of a tender, special terms and conditions of a contract, this letter, general terms and conditions of a contract, details of change in the form of air force headquarters, purchase contract, goods purchase contract, special terms and conditions of goods manufacture and purchase contract, general conditions of goods manufacture and purchase contract, quality assurance activity plan, product notification plan, work performance report (from March 14, 2013 to December 27, 2013), inspection and delivery report, notification of the occurrence of defects in power generation, MA/S status, aircraft 54 units, results of comparison after the payment of the J equipment, results of verification on the removal of unused equipment, results of verification on the number of test equipment attached thereto, photographs, payment status of prices, specifications of engine metal and purchase contract (general) , specifications of test specifications and receipts for each type of equipment, results of inspection on the number of test equipment to be inspected, results of inspection on the number of test equipment to be purchased, results of inspection on the number of test equipment available for each type of equipment available for each type of 1 to 5-4 test equipment, results of inspection on each type of equipment.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 3(1)1 of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Amended by Act No. 13719, Jan. 6, 2016); Articles 347(2) and 30(1) and 30(generally, choice of imprisonment with prison labor for abandonment)

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

Judgment on the argument of the defendant and defense counsel

1. Summary of the defendant and defense counsel;

The Defendant, while working as a non-standing technical expert member in J, was engaged in the assembly of M at the site in accordance with the direction of K, etc., and did not have a position to make a decision regarding deception stated in the facts constituting the crime in the judgment. Therefore, the Defendant cannot be held liable for the charge as a co-principal concerning the instant crime.

2. Determination

1) A joint principal offender under Article 30 of the Criminal Act commits a crime jointly by two or more persons. In order to establish a joint principal offender, a subjective element is required to commit a crime through functional control over a functional act based on a joint doctor as an objective element (see, e.g., Supreme Court Decision 2016Do15470, Jan. 12, 2017). In addition, a joint principal offender in collusion with two or more persons do not require any legal penalty, but is sufficient to communicate directly or indirectly with each other about the joint principal offender who wishes to commit a crime. The joint principal offender in conspiracy does not premise that all the accomplices realize the elements of the crime by themselves, and it is possible to cooperate with each other to strengthen the decision on the act. Whether it constitutes a joint principal offender ought to be determined by comprehensively taking into account the degree of understanding of each person’s results of the act, the degree of participation in the act, and the scale of control over the act (see, e.g., Supreme Court Decision 2012Do4296, Apr. 26, 201206).

2) In full view of the following facts acknowledged by the evidence duly adopted and examined by this court and the circumstances that could be inferred therefrom, the Defendant, as a technical expert in M-related M-related technology who takes charge of the assembly, etc. of MM, has engaged in the process of replacing the damaged prototype during the process of "reliability/reliability/reliability test" with other M (hereinafter "M 2") as a technical expert in charge of M-M assembly, and has contributed to the realization of the instant crime by sharing specific action under the contact with K, such as performing the work of replacing the name plates of attempted inspection in accordance with K's instructions, and by sharing the specific action under the contact with K, etc.

A) The New Business Headquarters, which is the department in charge of M-related projects in J, was comprised of K, office L, responsible research institute Z, technical expert members S, Y, Defendant, X, employees T, and AE, etc. Of the members of the New Business Headquarters, the technical experts were mainly in charge of M’s assembly, repair, and Kim Jong-soo. While the members of the New Business Headquarters were the largest technical expert group, S was in charge of the affairs of administration, external cooperation, purchase of goods, and procurement due to lack of expertise in M, and only the Defendant and X-Y3 persons were in charge of the technical expert group.

B) On February 9, 2015, the J concluded with the Defense Acquisition Program Administration in accordance with the M Goods Purchase Contract (hereinafter “instant purchase contract”). From May 9, 2015, 2015, the J manufactured M prototypes and commenced a test for reliability and durability of M Pilot products. The J organized four technical experts and one employee, including S and T, the Defendant, AC, Y, AD, X, and AH, with four employees.

On the other hand, on March 2013, the defendant suggested K and L to assemble M pilot products in preparation for the case where there is an engine disorder during the MM test, etc., and manufactured M 2 equipment separately from M pilot products.

C) However, around 11:00 a.m. on May 25, 2013, at around 11:00 a.m. (11:00 p.m. (hereinafter “the instant accident”). At the time of the instant accident, S and T was a longer technical expert member, but it was difficult for S to take measures for M pilot products due to the lack of expertise in M. Accordingly, T had suspended the operation of M pilot products, and conducted emergency contact with K, L, and Defendant, etc. In addition, the Defendant, who arrived at the J level, moved to the assembly site after separation of M pilot products from the power analysis machine, and, if repair was not possible due to the issue of M pilot products, the Defendant moved to 20 p.m., which was under the direction of M&M to take measures to ensure that the Defendant was under the direction of M&M, and the Defendant was under the direction of M&M to take measures to ensure that the pilot was under the condition of M&M again, and the Defendant was under the direction of M&M 2 p.

① At the time of the instant accident, the Defendant was in exclusive charge of technical measures regarding MM pilot products as working group around the time when MM and M 2 had been replaced. ② Of the members of the K New Business Headquarters, those with professional skills to the extent of decomposition and assembling inside engines installed in M are limited to the Defendant X and Y. At the time of May 25, 2013, Y was not at the site, and X was serving at the night at around 23:0 after the completion of all the instant accident. ③ At the investigation agency, the Defendant, “MM was replaced by 6:0 p.m., from 2:0 p.m. to 6:0 p.m., from 2:0 p.m. to 2:0 p.m., the Defendant’s work force was replaced by MM, and the Defendant was replaced by 10:0 p.m., more than 10:0 p.m., the Defendant’s work force was replaced by M at night.

D) After passing through the reliability and durability inspection of M Pilot Products, J had a performance test for the supply of M Products from September 2013, as stipulated in the instant purchase agreement. However, during the performance test process, some M did not satisfy the excess radio frequency characteristics, and it was confirmed that it was impossible to resolve this problem within the delivery period.

In meeting with technical experts such as S, Y, Defendant, and X, K directed them to attach M-raw goods to M-raw goods which failed to pass the radio frequency excess inspection, which have passed the radio frequency excess inspection, and accordingly, technical experts, including the Defendant, shared major action in the course of supplying M-raw goods that did not undergo a normal performance inspection, such as replacing the name plates of M-raw goods.

Reasons for sentencing

1. The scope of punishment: Imprisonment for not less than two years and not more than 6 months but not more than 15 years;

2. Scope of recommended sentences according to the sentencing criteria;

[Determination of Punishment] General Fraud (at least five billion won, but less than 30 billion won)

[Special Mitigation] If the risk of damage is not substantially realized;

[Recommendation and Scope of Recommendations] Reduction Area, 3 years to 6 years

3. Determination of sentence;

[Unjustifiable circumstances] The crime of this case is a large amount of money that the defendant passed through the performance test of M prototypes and mass products by unlawful means with K, L, etc. and supplies them to each Air Force Flight Group. The crime of this case is a case in which the victim deceptions the Defense Acquisition Program Administration and Js the transfer of property, and the amount of money acquired by the defendant reaches about 13 billion won. The price of munitions such as M is paid with the national defense budget. As such, since the price of munitions such as M is paid with the national defense budget, damage to property caused by the crime of this case is bound to result in damage to the people. Furthermore, unlike the general fraud case that mainly causes property damage, the crime related to the defense industry is highly likely to be subject to criticism because it is likely to adversely affect our military power and national security.

[G] The Defendant did not have any history of punishment for criminal acts prior to the instant crime, and is recognized as a substitute for the instant crime. The Defendant, as a technical expert member of the J, did not have a decision-making authority, and did not have a decision-making authority, and was engaged in the instant crime at a passive same time in concert with the decision-making and instruction of K, L, etc., and does not seem to have any other personal benefit due to the instant crime. Furthermore, the Defendant appears to have worked normally among M supplied by the J, and the Defendant is performing the said M’s work in good faith up to now.

In addition, in comprehensive consideration of the defendant's age, character and conduct, environment, family relationship, motive and background of each of the crimes of this case, circumstances after the crime, etc. and all the sentencing factors specified in the records and arguments of this case, the punishment shall be set lower than the minimum sentencing guidelines.

Judges

The presiding judge, judge Kim Jong-tae

Judges Kim Gin-han

Support for judges' organization

Note tin

1) Although the facts charged in the instant case are indicated as "Article 14", the evidence duly adopted and examined by the court is obvious that this is a clerical error, and thus, it is corrected and recorded as above.

2) Although the facts charged in the instant case are indicated as KRW 1,438,00,00,000, according to the entries in the attached list of crimes and the evidence duly adopted and examined by this court, it is obvious that this is a clerical error, and thus, it is corrected and recorded as above.

3) The facts charged in the instant case do not clearly state the Defendant separately by stating that the subject of the attempted M through the replacement of a name tag is K, technical expert members S, and team members T, etc. of the headquarters, but according to the evidence duly adopted and investigated by this court, it is apparent that the Defendant falls under “T, etc. of the team members, etc.” as the subject of the act performed by the replacement of the above name plate. Thus, in order to clarify such factual relations, the corrective statement is made as above.

4) The prosecutor prosecuted the Defendant on the application of Article 3(1)1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Articles 347(1) and 30 of the Criminal Act. However, the Defendant cannot be deemed to have reverted to the Defendant as a technical specialist of the J, and the M& purchase price acquired by the J cannot be deemed to be attributed to

Even in cases where there are errors or omissions in the entry of applicable provisions of law, unless such errors or omissions give a substantial disadvantage to the defendant's defense, the validity of prosecution is not affected, and the court may also apply legal provisions that are not immediately stated in the indictment without going through the procedures for modification of indictment (see, e.g., Supreme Court Decision 96Do1231, Aug. 23, 1996). Accordingly, Article 347(2) of the Criminal Act to the defendant without the procedures for modification of indictment should be applied.