A. misunderstanding of facts and misapprehension of legal principles

1) The facts charged concerning the violation of the Certified Judicial Scriveners Act (hereinafter “this part of the facts charged”) cannot be deemed to be specified.

2) Since Defendant 2 was actually involved in Defendant 1’s general registration affairs while performing his duties as a certified judicial scrivener, it cannot be deemed that the Defendants had leased his certified judicial scrivener registration certificate.

3) Nevertheless, the judgment of the court below which found the defendant guilty of this part of the facts charged is erroneous in mistake and misapprehension of legal principles

B. Unreasonable sentencing

The sentence of the lower court (Defendant 1: Imprisonment with prison labor of two years, additional collection, Defendant 2: Imprisonment with prison labor of one year, two years of suspended execution, 160 hours of community service order, additional collection) is too unreasonable.

2. Determination

A. Judgment on misconception of facts and misapprehension of legal principles

1) Determination on the assertion that this part of the facts charged is not specified

The facts charged should be stated clearly by specifying the time, date, place, and method of a crime (Article 254(4) of the Criminal Procedure Act). The purport of the Act that specifies the facts charged is to limit the scope of the trial against the court and to facilitate the exercise of the defense right by specifying the scope of the defense against the defendant. As such, the specific facts charged is sufficient to specify the facts underlying the public prosecution by stating the time, place, method, purpose, goods, etc. to the extent that it can distinguish the facts underlying the public prosecution from other facts charged, and even if part of the facts charged are somewhat unclear, it does not affect the validity of the public prosecution as long as the facts charged can be specified by other indicated matters (see, e.g., Supreme Court Decision 2006Do48, Jun. 22, 2006).

With respect to the instant case, this part of the facts charged specify the details of the Defendants’ lending and lending of the certified judicial scrivener registration certificate, and the Defendants can sufficiently exercise their right of defense through a dispute as to whether Defendant 2 was actually involved in the operation of the certified judicial scrivener business. Thus, this part of the facts charged is specified to the extent that it does not interfere with the Defendants’ exercise of right of defense.

Therefore, this part of the Defendants’ assertion is without merit.

2) Determination as to the assertion that no certified judicial scrivener certificate was lent

The lending of a certificate of certified judicial scrivener under Article 21 (2) of the former Certified Judicial Scriveners Act (amended by Act No. 8920 of Mar. 21, 2008) refers to the lending of a certificate of certified judicial scrivener itself even though other person is aware that he/she intends to conduct a certified judicial scrivener as a certified judicial scrivener by using his/her certificate of registration (see Supreme Court Decision 2002Do1226, May 10, 2002). Here, "act as a certified judicial scrivener" means not only act performed by a disqualified person in the name of the certified judicial scrivener but also act in the manner that he/she is the certified judicial scrivener as if he/she is the certified judicial scrivener. Instead of giving a certain amount to a certified judicial scrivener, the lending of a certificate of registration for certified judicial scrivener shall be interpreted to include not engaging in the number of cases of a disqualified person or duties but all of his/her duties on his/her account (see Supreme Court Decision 2007Do4894, Sep. 11, 2008).

In light of the following circumstances acknowledged by the court below and the court below's duly adopted and examined evidence, i.e., ① the confession of the fact that the court below lent the certificate of registration of a certified judicial scrivener to the court below, and the credibility of the statement is recognized; ② the defendants agreed to settle the accounts based on the particulars accepted by each party (Evidence records 2089); Defendant 1 was in exclusive charge of general registration affairs and individual rehabilitation; Defendant 2 did not appear to have been in full charge of litigation affairs and individual rehabilitation; and as a result, Defendant 1's revenue appears to have been most of the revenue of the office of this case (Evidence records 209, 1152 pages). Accordingly, the non-indicted did not appear to have been in full view of the fact that the non-indicted's act of lending all money in the account of the certified judicial scrivener of this case to the private account of the defendant 1 and the defendant 2 did not appear to have been in full in consideration of the above facts and records related to the defendant 1's business affairs as the general certified judicial scrivener of this case.

Therefore, this part of the Defendants’ assertion is without merit.

B. Determination on the assertion of unfair sentencing

The Criminal Procedure Act, which takes the principle of trial-oriented and directness, should respect the determination of sentencing in cases where there exists no change in the conditions of sentencing compared to the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion (see Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

Even if the materials submitted at the trial court were without significant changes in the sentencing conditions compared to the court below, and comprehensively taking account of all the circumstances that form the conditions for sentencing as shown in the records and arguments of this case, the sentencing of the court below cannot be deemed to have exceeded the reasonable scope of discretion because the sentencing of the court below is too unreasonable.

Therefore, the Defendants’ assertion of unreasonable sentencing is without merit.

3. Conclusion

Therefore, the appeal by the Defendants is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices.

Judges Jeon Jinamam (Presiding Judge) This ventilation batteries