[2] Whether the appellate court's dismissal of an appeal is against Article 364 (4) of the Criminal Procedure Act, where the appellate court decides that the appeal has no merit only for the reason thereof, and the appellate court's rejection of an appeal is not ordered

Unlike the crime of uttering of forged securities, the purpose of punishment for the crime of uttering of forged securities is to protect the credibility of documents simply to protect the credibility of the documents, and in the case of uttering of forged securities, if the delivery of forged securities is recognized and delivered to the person who knows that it is true or true securities, and even if the delivery was made to the person who knows that it is forged securities, the act of delivery itself is likely to harm the distribution order of securities, and therefore there is sufficient reason and necessity of punishment. Thus, the crime of uttering of forged securities is established (see Supreme Court Decision 81Do2492 delivered on June 14, 1983, etc.). However, if the delivery of forged securities and the person who delivered them conspired to forge, or to divide profits into those of others, if the delivery of forged securities and the person who conspired to do so, the delivery of forged securities is merely a pre-stage act to realize the crime by exercising it to others, and it cannot be deemed that the delivery of forged securities has yet been made during the exercise of the crime.

Of the facts charged in this case, the court below affirmed the judgment of the court of first instance which acquitted Defendants 1, 2, 4, 5, and 6 of the facts charged in this case on February 23, 2006 that the use of forged securities constitutes a case where a forged check is transferred in succession among the accomplices who conspired in the order of forgery of the check in this case, and in this case, the crime of uttering of forged securities is not established. The judgment of the court below is correct in accordance with the aforementioned legal principles, and there is no error of law by misunderstanding the legal principles as to the crime of uttering of forged securities.

2. Ex officio determination

Article 364 (4) of the Criminal Procedure Act provides that an appellate court shall dismiss an appeal by judgment when it deems that the appeal has no grounds for appeal.

According to the records, among the facts charged in this case against Defendant 3, the part concerning the crime of uttering of forged securities as of February 23, 2006 and the part concerning the crime of uttering of forged securities among the facts charged against Defendant 5 was pronounced not guilty at the court of first instance and appealed by the prosecutor. The court below determined that the prosecutor's appeal as to this part of the facts charged in this case is groundless, but it can be known that the court below did not sentence the dismissal of appeal in the order. Thus, the court below erred by violating Article 364 (4) of the Criminal Procedure Act (see, e.g., Supreme Court Decision 2004Do6432, Sept. 14, 2006).

Therefore, each of the above parts of the judgment below is not exempt from reversal in this respect, and this part of the case is recognized to be sufficient to render a judgment based on the records of trial and the evidence examined up to the court below, so this court's judgment is to be rendered directly by Article 396 of the Criminal Procedure

The gist of the prosecutor's appeal as to each of the above parts is that the final delivery of forged securities is to distribute forged securities among the accomplices who conspired to forge the securities, and thus, it is likely that the final deliveryer would have distributed forged securities, and thus, it should be punished as the crime of uttering of forged securities. However, the judgment of the court of first instance which acquitted each of the above parts of the above is erroneous in the misapprehension of legal principles as to the crime of uttering of forged securities. However, as seen in the judgment as to the above grounds of appeal, the judgment of the court of first instance is justified, and there is no error as alleged in the grounds of appeal.

3. Conclusion

Therefore, the Prosecutor’s appeal against Defendant 1, 2, 4, and 6 is dismissed. Of the judgment below, Defendant 3-2 of the judgment below is reversed and the Prosecutor’s appeal against this part is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)