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(영문) 대법원 1988. 5. 24. 선고 87도2696 판결

[공정증서원본불실기재,공정증서원본불실기재행사,부동산소유권이전등기등에관한특별조치법위반][공1988.7.15.(828),1008]

Main Issues

A. The meaning of a notarial deed as referred to in Article 228 of the Criminal Act;

B. Whether the court below was included in the number of days pending trial where the court below was reversed by Defendant’s appeal

Summary of Judgment

A. The term “notarial deed” as referred to in Article 228 of the Criminal Act refers only to a notarial deed as to rights and obligations, and it is not included in any factual certification, and land cadastre that does not change the rights and obligations does not constitute a notarial deed as mentioned above.

B. In this case where the defendants filed an appeal and reversed the judgment of the court of first instance in the court below, and the number of days of detention in the court of the court below against the defendants is entirely calculated by law in accordance with Article 482(1) of the Criminal Procedure Act. Thus, the court below's decision that was not included in the

[Reference Provisions]

A. Article 228 of the Criminal Act/Article 482(1) of the Criminal Procedure Act

Reference Cases

A. Supreme Court Decision 69Do2059 delivered on December 29, 1970, Supreme Court Decision 84Do1217 delivered on October 23, 1984

Escopics

Defendant 1 and one other

upper and high-ranking persons

Defendants

Judgment of the lower court

Seoul High Court Decision 87No2839 delivered on December 1, 1987

Text

All appeals are dismissed.

Reasons

The Defendants’ grounds of appeal are also examined.

In full view of the evidence cited by the court of first instance as cited by the court below, it is sufficient to recognize the facts of the crime as stated in its reasoning. As such, it cannot be said that the court below erred by misapprehending the rules of evidence and failing to exhaust all necessary deliberations, or by erroneously applying the law. The argument is that each of the lands of this case conforms to the substantive relationship, on the premise that each of the lands of this case was owned by the inheritee, and thus, the registration of preservation of ownership and registration of transfer in the name of the Defendants is consistent with the substantive relationship. Therefore, the crime of false entry in the authentic copy of the authentic deed is not established. However, since each of the lands

In addition, as pointed out in the paper, the "notarial deed" as referred to in Article 228 of the Criminal Act refers only to a notarial deed as to rights and obligations, and since any fact certification is not included, it does not constitute a notarial deed as referred to in the above, land cadastre which does not change the rights and obligations. However, in this case, it is obvious that the court below erred in the misapprehension of the concept of notarial deed and there is no argument that the court below erred in the misapprehension of the legal principle as to the notarial deed.

In addition, in case where the defendant appealed and the original judgment was reversed, the whole number of days of detention after the appeal is to be included in the principal sentence in accordance with Article 482(1) of the Criminal Procedure Act. Thus, in this case where the defendants reversed the judgment of the first instance in the original court by filing an appeal and sold the judgment by the court below, the number of days of detention to the defendants in the original court is to be included in the court. Thus, the court below's decision

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Choi Jae-ho (Presiding Justice)

심급 사건
-서울고등법원 1987.12.1.선고 87노2839
본문참조조문