[위조유가증권행사·음반·비디오물및게임물에관한법률위반·음반·비디오물및게임물에관한법률위반(등급분류위반)][공2007.5.15.(274),741]
The case holding that the facts charged are sufficient to specify the scope and place of the date of use of merchandise coupons, and the degree of use that "payment for light goods" was made, on the grounds that it is impossible to specify the specific use of merchandise coupons, such as the use of merchandise coupons several times at the time of use, who is the other party to exercise
The case holding that since it is not directly delivered a forged gift certificate to customers who won the winning, but it is not possible to specify the degree of use of the forged gift certificate, such as the scope and place of the use date of the gift certificate, and the degree of use of the "payment for the use of goods", since it is sufficient to specify the scope of the use date of the gift certificate, and the degree of use of the "payment for the use of goods" in relation to the crime of using the forged gift certificate which is automatically equivalent to the number of the winning amount when the use of the gift certificate was automatically used from the entertainment machine, when the use of the gift certificate was made in the game.
Article 254(4) of the Criminal Procedure Act
Defendant
Prosecutor
Attorney Park Dong-con
Seoul Southern District Court Decision 2006No1519 Decided January 10, 2007
The part of the judgment of the court below regarding the exercise of forged securities shall be reversed, and the case shall be remanded to Seoul Southern District Court Panel Division.
We examine the grounds of appeal by the prosecutor.
According to the reasoning of the judgment below, with respect to the part concerning the crime of uttering of forged securities among the facts charged in this case, the court below should specify the facts by specifying the date, time, place, and method of the crime. The crime of uttering of forged securities is established at each number of times, and one crime of uttering of forged securities is established at one time, and the crime of uttering of forged securities is established at a quantity equal to the number of times, but there is a mutual competition among them. As such, in indictment for the crime of uttering of counterfeit securities, the prosecutor must consider the three specific elements as above, and state specific facts that meet the requirements for composition of crime so that it can be recognizable from other facts. In light of these legal principles, the court below determined that "30,000, which is forged cultural product right, can be used at one time, to many unspecified customers from around July 20 to September 5, 206, which constitutes the crime of uttering of forged securities, and thus, dismissed the judgment of the court below in accordance with Article 24 (2) of the Criminal Procedure Act."
However, such judgment of the court below is hard to accept.
According to the facts and records acknowledged by the court below, the right of counterfeit merchandise in this case is not directly delivered to the defendant who won the winning in the amusement machine, but it is automatically used from the amusement machine to discharge merchandise coupons corresponding to the winning amount if the user who won the winning in the game. The serial numbers indicated on the merchandise coupon in this case are identical to all the serial numbers indicated on the merchandise coupon in this case, and thus it is impossible to distinguish between merchandise coupons. Thus, in describing the method of exercising the merchandise coupon, it can be indicated that the place and period of use are specified and several merchandise coupons are used within that period, but it is impossible to specify whether each merchandise coupon has been used together and who is the other party to the event. Accordingly, it is inevitable to specify to the extent that "the scope, place of use, and the purpose of use" as stated in the bill in this case is "the extent of the date of use, the place," and there is no additional method except this.
In addition, the demand for the specification of the facts charged in the criminal procedure is to guarantee the defendant's right of defense, and if there are all practical specifics as above, it is possible for the defendant to defend him/her. Thus, it does not seem that the defendant can exercise his/her right of defense only if there are such additional specifics as impossible. The same applies even when considering the fact that only one crime is established for each type of forged securities used in the crime of uttering of forged securities.
Therefore, the crime of uttering of forged securities in this case should be specific as stated in the indictment of this case. However, the court below held that the court below's dismissal of prosecution is erroneous in misunderstanding legal principles as to the specification of the facts charged, and it affected the conclusion of the judgment, on the ground that this part of the facts charged cannot be viewed as specifying specific facts of crime in compliance with the requirements of Article 254 (4) of the Criminal Procedure Act, since the indictment procedure is invalid in violation of the law.
Therefore, the part of the judgment of the court below regarding the exercise of forged securities shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination (However, the number of copies of the forged merchandise coupons exercised should be specified). It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Jeon Soo-ahn (Presiding Justice)