[공문서위조][하집1993(3),346]
In the absence of the authority to prepare a document, and where a person authorized to prepare a document by delegation of the statutes or by the person entitled to prepare the document prepares the document, the crime of forging the document
The crime of forging an official document means that a person without the authority to prepare the document concerned prepares the document, and even if the person with the authority to prepare the document is not the original public official of the person with the authority to prepare the document, if the document is prepared by Acts and subordinate statutes or by the delegation of the authority to prepare the document,
Article 225 of the Criminal Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)
Defendant 1
Defendant
Daegu District Court Decision 9Nu223, 318 (Consolidated) delivered on December 24, 1992
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment for six months.
The 30 days of detention days before the sentence of the original judgment shall be included in the above sentence.
However, the execution of the above punishment shall be suspended for one year from the date this judgment becomes final and conclusive.
Of the facts charged in the instant case, each of the defendants is acquitted that he/she forged and exercised a farmland trading certificate under the name of the port market.
1. Summary of grounds for appeal;
A. Error of mistake
(1) The Defendant was in charge of the business of industrial and green areas at the Magdong Office at the time of the first trial, and Nonindicted Party 1 prepared and issued a farmland trading certificate in the name of the port market necessary to purchase the (number omitted) return 160 square meters at the time of port, but the Defendant was entitled to prepare and issue a farmland trading certificate in the name of the port market at the time of port, and since the Defendant was also subject to issuance, the Defendant cannot be deemed to have exercised a forged farmland trading certificate as an official document. However, the lower court erred by misapprehending the fact that the Defendant had exercised a farmland trading certificate by forging a farmland trading certificate.
(2) Even though the Defendant prepared a farmland ledger with Nonindicted 1’s approval from Nonindicted 2 of the head of the Man Chang-dong in the name of the head of the Dong at the time of port with the permission of Nonindicted 2, the lower court erred by misapprehending the fact that the Defendant arbitrarily forged and exercised the farmland ledger without approval from Nonindicted 2
(3) In order for Nonindicted Party 1 to purchase the above answer 160 square meters, a certificate of sale and purchase of farmland is subject to its issuance, and the Defendant prepared and issued it. However, although the farmland ledger, which forms the basis of the issuance, was not kept, and the Defendant prepared and kept it, and the Defendant did not have a criminal intent to forge and exercise the farmland ledger, which is an official document, but the lower court erred by misapprehending the legal principles that the Defendant had forged and exercised the farmland ledger, which affected the conclusion of the judgment.
B. Unreasonable sentencing
The sentence of the court below is too unreasonable.
2. Determination on the grounds for appeal
A. Judgment on the assertion of mistake of fact
(1) As to the above Article of the Farmland Sale Certification Board
(A) According to the evidence duly admitted by the court below and the court below, the defendant was working as a civil petition counter manager in charge of the affairs of preparation, issuance, etc. of a farmland trading certificate center at the Mag-dong Office from October 11, 1989 to the Mag-dong Office at port. It is recognized that the non-indicted 1, who is a public official, who resides in the Mag-dong (number omitted) on October 31, 1989, receives a demand from the non-indicted 1, who is a public official, to issue a certificate for the purchase of the farmland trading (number omitted) at the Mag-dong Office at port and Mag-dong on October 1, 1989, to prepare and issue a certificate for the purchase of the farmland trading certificate under the name of the Mag-dong market, and that the non-indicted 1 submitted it to
(B) The crime of forging an official document refers to the preparation of a document by a person who is not authorized to prepare the document in question, and even if the person who is authorized to prepare the document is not a public official of the original authority, it does not constitute the crime of forging the document when the document is prepared by law or by delegation of the authority to prepare it
(C) According to Article 19 and Article 51 of the Enforcement Rule of the Farmland Reform Act and Article 51 of the Enforcement Rule of the same Act, the preparation and issuance of a certificate of farmland sale and purchase are to be made and issued by the head of the Dong having jurisdiction over the original location of the farmland, and by the confirmation of the farmers' organizations designated by the Minister of Agriculture and Forestry and the head of the Dong and the head of the Eup/Myeon. However, the preparation and issuance of a certificate of farmland sale and purchase pursuant to the Ordinance on Delegation of Affairs at Port (Ordinance No. 1340 of Jan. 11, 1988) was delegated to the head of the Dong for the preparation and issuance of a certificate of farmland sale and purchase pursuant to the Ordinance on Delegation of Affairs at Port (Rules No. 195 of Jul. 30,
(D) Based on such legal basis, the Defendant, as a civil petition counter manager, was granted the authority to complete and issue a certificate of farmland trade in the name of the port market as a person in charge of civil petition affairs while working in the post office at the port of port, and thus, even if the Defendant prepared and issued the certificate of farmland trade in the name of the port market, if some of the contents are different from the facts, and did not confirm the column for confirming and confirming the farmland ledger, the Defendant cannot be deemed to have forged and used the official document. Since there is no other evidence to acknowledge this, the lower court found the Defendant guilty of this part, the lower court erred by misapprehending the legal doctrine that affected the conclusion
(2) As to the above Article of the farmland ledger
(A) Nonindicted Party 2, who was the head of the Dong at the time of port, stated that the court below’s decision that there was no approval from Nonindicted Party 1 at the court below to prepare the farmland ledger with respect to Nonindicted Party 1. The Defendant obtained Nonindicted Party 2’s seal from Nonindicted Party 2, the head of the Dong, while using Nonindicted Party 2’s seal in the preparation of the Seocho-gu Resident Card, and thereby, made a farmland ledger with the content that Nonindicted Party 1 resided in the Dong-dong (number omitted) of the Dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong
(B) According to the evidence duly admitted by the lower court and the trial court, the farmland ledger under the Farmland Preservation and Utilization Act requires the head of the Gu, the Mayor, the Eup, or the Myeon to be prepared, but at the port of port, the farmland ledger for new farmers was transferred from February 1, 1988 to each head of the Dong. The farmland ledger for new farmers shall be prepared by the head of the competent Dong after deliberation by the farmland committee in March of each year. As seen above, the Defendant prepared and issued a farmland sale certificate to Non-Indicted 1 on October 31, 1989, and issued it to Non-Indicted 1 on November 15, 1989 without deliberation by the farmland committee, and completed the farmland sale certificate to Non-Indicted 1 on November 15, 1989.
Thus, in light of the fact that the defendant without the authority to prepare a farmland ledger, violates the legitimate procedure and prepares and keeps it retroactively by the date of preparation, it may be recognized that the defendant has a criminal intent to use the official document by forging it. Therefore, the allegation of mistake of facts in this part is without merit.
3. Conclusion
Since the lower court recognized the guilty portion and the acquitted portion as one of the concurrent crimes, and sentenced a single sentence, the lower judgment does not exempt the entire reversal without having to examine the argument of unfair sentencing. Accordingly, the lower judgment is reversed pursuant to Article 364(6) of the Criminal Procedure Act and the judgment is rendered following the pleadings.
The summary of the criminal facts of the defendant recognized as a party member and the summary of the evidence is the same as the part corresponding to the summary of the criminal facts of the judgment below and the summary of the evidence. Thus, it is cited in accordance with Article 369 of the Criminal Procedure
(a) Relevant Articles and choice of punishment;
(1) An article 225 and 30 of the Criminal Act shall apply to a section of the official document;
(2) The point of such event: § 229, § 225, § 30 of the Criminal Act;
(b) Aggravation of concurrent crimes: Articles 38 (1) 2 and 50 of the former part of Article 37 of the Criminal Act.
(c) Discretionary mitigation: Article 53(1)3 of the Criminal Act (i.e., Article 55(1) of the Criminal Act (i.e., Article 55(1)3 (i., Article 53 of the Criminal Act; Article 55(1)3); Article 55(1)3 of the same Act (i.e
(d) Inclusion of days of pre-trial detention: Article 57 of the Criminal Act;
(e) Suspension of execution: Article 62 (1) of the Criminal Act;
Of the facts charged in the instant case, the summary of the facts charged as to the Defendant’s use of forged and falsified a farmland trading certificate in the name of the port market, which is an official document, was “the Defendant” and used as if he were genuine documents to the public official in charge of the viewing and viewing cadastral records and the officials in charge of the official document through Nonindicted 1, the following facts are forged: (a) around October 31, 1989; (b) around 19:00, Nonindicted 1, at the Magdong-dong Office in the Magdong-dong Office in the Magdong-si Office in the Magdong-dong Office in order to use in collusion with Nonindicted 1 for the purpose of exercising duties concerning industry, green areas, etc.; and (c) around that time, at around December 24, 1986, at the Magdong-dong Office in the Magdong-si Office in order to purchase 160 square meters in the Magdong-si (number omitted).
Judges Kim Dong-ho (Presiding Judge)