[허위공문서작성][집23(1)형,22;공1975.5.15.(512),8390]
Authority and authority in the establishment of a crime of preparation of false official document means the meaning thereof.
The so-called "documents concerning duties" in the crime of preparing false official documents under Article 227 of the Criminal Code refers to documents prepared by a public official within his/her authority and authority, and this authority does not necessarily require legal grounds, but includes cases where the public official prepares the authority for the execution of duties in accordance with the internal rules of orders or customs.
Defendant
Prosecutor
Attorney Song-chul
Seoul Criminal Court Decision 74No553 delivered on July 25, 1974
The judgment of the court below is reversed and the case is remanded to the Panel Division of the Seoul Criminal Court.
We examine the grounds of appeal by prosecutor Kim Young-young of Seoul District Prosecutors' Office.
According to the reasoning of the judgment below, in preparing an interrogation protocol of the non-indicted as a judicial police assistant, the court below acknowledged the fact that the defendant made a false statement, such as the statement of public prosecution, but the subject of the crime of preparing false public documents must be a public official with the authority to prepare such public document, and the interrogation of the suspect under the Criminal Procedure Act belongs to the authority of judicial police officer, and there is no authority to prepare an interrogation protocol of the suspect because the defendant is merely a judicial police assistant, so the defendant cannot be the subject of the crime of preparing false public documents of this case.
However, the so-called "documents concerning duties" in the crime of preparing false public documents under Article 227 of the Criminal Act refers to documents prepared by a public official within his/her authority, as determined by the court below, but this authority does not necessarily require legal grounds, but includes cases where the official authority is prepared as the authority of performing his/her duties according to orders, bylaws or practices, and it can be seen that almost all of the interrogation protocol prepared by the police is prepared under the name of the judicial police officer. Thus, even if the interrogation protocol prepared by the judicial police officer without any legal grounds as mentioned above, it cannot be concluded that the defendant cannot be the subject of the crime of preparing false public documents merely because the judicial police officer does not have the authority to prepare a interrogation protocol under the Criminal Procedure Act.
Therefore, the judgment of the court below which did not reach the above is erroneous in the misunderstanding of legal principles as to official authority in the crime of false official document, and further did not examine the case. Therefore, the appeal against this error is justified and the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.
Justices Yang Byung-ho (Presiding Justice)