[업무상배임(변경된 죄명 : 횡령)·등록증불실기재·불실기재등록증행사][공2005.8.15.(232),1374]
[1] The meaning of "registration certificate" under Article 228 (2) of the Criminal Code
[2] The case affirming the judgment of the court below that the business registration certificate does not correspond to the "registration certificate" under Article 228 (2) of the Criminal Code
[1] Article 228 of the Criminal Code regulates the so-called indirect forgery of an official document by a public official who is not a public official who is not aware of the fact that it makes a false statement in the official document, and limits the object of the document to "the original notarial document or special media records such as electronic records (Paragraph 1), "license certificate, permit certificate, registration certificate, or passport (Paragraph 2)" without the object of all public documents. The purpose of the provision is to guarantee the public credibility of public documents that require special credibility in the ordinary social life among public documents. Thus, the "registration certificate" under Article 228 (2) of the Criminal Code is not all registration certificates prepared by a public official, but to recognize the ability of a person who satisfies certain qualifications or requirements to perform activities corresponding to the qualifications or requirements.
[2] The case affirming the judgment of the court below which held that the business registration certificate does not constitute a "registration certificate" under Article 228 (1) of the Criminal Code since it is merely a certificate proving a simple business fact and it does not recognize that the business registration certificate satisfies the qualification or requirement for operating a business.
[1] Article 228 (2) of the Criminal Code / [2] Article 228 (2) of the Criminal Code
Defendant
Prosecutor
Busan District Court Decision 2002No3884 delivered on October 30, 2003
The appeal is dismissed.
1. Article 228 of the Criminal Act provides punishment for the so-called indirect forgery of an official document that a person who is not a public official who is not aware of the fact makes a false statement on the official document by using a public official who does not know of the fact, and restricts the object of the punishment with "the original of the official document or special media records such as electronic records (Paragraph 1)," "license certificate, permit certificate, registration certificate or passport" (Paragraph 2). The purport of the restriction is to guarantee the public credit of the official document that requires special credibility in the ordinary social life among the official documents. Thus, Article 228 (2) of the Criminal Act does not refer to any registration certificate prepared by a public official, but it refers to the certificate prepared by a public official to recognize the ability to perform activities corresponding to the qualification or requirements.
The court below affirmed the judgment of the court of the first instance that acquitted the applicant of the fact that the registration certificate of this case does not fall under the registration certificate under Article 228 (1) of the Value-Added Tax Act, because the Value-Added Tax Act allows the business operator to apply for registration to the head of the district tax office having jurisdiction over the place of business in order to identify the taxpayer of value-added tax and secure taxation data, and the contents of the application for registration are the business operator's personal information, the reason for application for registration of business, the date of commencement of business, etc. and the application for registration is within seven days unless there are special circumstances. Thus, the above business registration certificate is merely a certificate proving registration of business fact and does not meet the qualification or requirements for operating business. Thus, the court below affirmed the judgment of the court of the court of the first instance that acquitted the applicant of the issuance of the registration certificate of this case on the ground that it does not fall under the registration certificate of registration certificate of this case and the exercise of the false entry certificate of registration certificate of business.
2. The court below affirmed the first instance judgment that acquitted the Defendant of embezzlement among the facts charged in this case on the ground that there is no evidence to acknowledge that the Defendant disposed of the business property at will on November 200 or on December 12 of the same year, and that the Defendant terminated the business contract with the Defendant and withdraws from the business relationship. However, if Kim Young-dong withdraws from the business relationship due to two persons, the business property belongs to the sole ownership of the Defendant remaining after the withdrawal, and only the amount of investment due to the withdrawal between Kim Young-ho and the Defendant who left the business remains remaining. Thus, even if the Defendant transferred the right to operate the above factory to the largest sense, this does not constitute embezzlement. The court below affirmed the first instance judgment that acquitted the Defendant of embezzlement on the ground that there is no evidence to acknowledge that the Defendant disposed of the business property at will, and there is no other evidence to acknowledge that the Defendant disposed of the business property at will, it is justified in the judgment of the court below, and there is no error of law such as misunderstanding of facts due to the violation of the rules of evidence and misunderstanding
3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Jack-dam (Presiding Justice)