[2] The case affirming the judgment below which deemed forged bill of lading submitted by the defendant to the bank as the object of uttering of a falsified investigation document

[3] The case holding that the judgment of the court below which judged otherwise erred in the misapprehension of legal principles since it could not be seen as a copy of a bill of lading stamped "COY NON NABLE"

The term "securities" in the crime of uttering of forged securities refers to the original of forged securities, and a copy which mechanically copied using an electronic reproduction machine, etc. does not constitute this (see Supreme Court Decision 2006Do8480, Feb. 8, 2007, etc.).

According to the reasoning of the judgment below, the court below found the defendant not guilty of the facts charged as to the exercise of forged securities by delivering forged bill of lading to employees of the Chungcheong Bank. Even if based on the statement of employees of the Chungcheong Bank, the defendant's submission of forged bill of lading to the bank is a copy of the forged bill of lading, and there is no other evidence to prove that the defendant submitted the falsified original bill of lading. In light of the above legal principles and records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error in the misapprehension of legal principles as to the objects of the crime of uttering of

2. As to the Defendant’s ground of appeal

A. As to the assertion on the uttering of the above investigation document

The crime of forging a private document is established when the form and appearance to the extent that the nominal owner can see in writing the document actually prepared by the nominal owner is sufficient to mislead the general public into the authentic private document of the nominal owner. It does not necessarily require the signature or seal of the nominal owner. However, whether it is sufficient for the general public to mislead the document in the real private document of the nominal owner should be determined by comprehensively taking into account various circumstances, including the form and appearance of the document, the preparation process, type, content, and function of the document in the ordinary transaction (see Supreme Court Decision 2008Do10195, Jul. 23, 2009, etc.).

In light of the evidence duly admitted and examined by the court of first instance as to the exercise of forged securities among the facts charged against the defendant, the court below found the defendant guilty of the above part of the facts charged, on the ground that the bill of lading of this case forged by the defendant has a sufficient form and appearance to regard it as a true private document under the name of DIMFCO, and in fact, it is recognized that the defendant submitted it to the bank as evidence and made the import payment. Thus, even if the bill of lading of this case does not have the signature and seal of the person who prepared it, it is sufficient to view it as a document subject to the crime of uttering of the above investigation document.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just, and there is no error of law such as misunderstanding of legal principles or misunderstanding of facts as alleged in the grounds of appeal.

B. As to the assertion on the violation of securities fraud

In a case where only the prosecutor appealed the judgment of the court of first instance on the ground of unfair sentencing and the defendant did not appeal, the defendant can not be considered as the grounds for appeal (see Supreme Court Decision 96Do1212, Oct. 11, 1996, etc.). According to the first instance court and the reasoning of the court below and the records, the court of first instance found the defendant guilty of the violation of the former Foreign Exchange Control Act and the former Foreign Exchange Control Act among the facts charged against the defendant, and found the defendant not guilty of the violation of the former Foreign Exchange Control Act, and the defendant appealed only on the grounds of misapprehension of legal principles and unfair sentencing. Accordingly, in accordance with the above legal principles, it is reasonable to deem that the defendant cannot be considered as the grounds for appeal concerning the forgery of the above securities and the violation of the former Foreign Exchange Control Act among the judgment of the court of first instance, and therefore, this part of the grounds for appeal by the defendant cannot be

However, if there is a violation of the law that affected the judgment, the court of final appeal may judge ex officio even if the bill of lading is not included in the appellate brief (Article 384 and Article 383 subparag. 1 of the Criminal Procedure Act), and Article 214 of the Criminal Act that provides for the crime of forging securities refers to the exercise and disposal of property rights indicated in the securities and the necessity of possession of the securities, and the property rights are incorporated in the securities and the possession of the securities is required (see Supreme Court Decision 2001Do2832, Aug. 24, 2001). According to the evidence duly adopted and investigated by the first instance court, the bill of lading of this case that the defendant forged is a copy of the bill of lading "NYNNAPOE", and it cannot be deemed that the right to request the delivery of the cargo has been created, and therefore, the court below erred in the misapprehension of legal principles as to the above securities under Article 214 of the Criminal Act, which affected the conclusion of the judgment.

3. Scope of reversal

Therefore, the part of the judgment of the court below regarding the crime of forging securities cannot be reversed. Meanwhile, since the above crime of forging securities is punished by concurrent crimes under the former part of Article 37 of the Criminal Act, the crime of uttering of the above investigation document, the violation of the former Foreign Exchange Control Act, and the crime of uttering of the above investigation document and the crime of uttering of the former Foreign Exchange Control Act, among the judgment of the court below, shall also be reversed, and as long as the part of the crime of uttering of the above investigation document is reversed, the part of the judgment of the court below regarding the exercise of the above investigation document, which is the primary charge of the same body, shall be reversed

4. Conclusion

Therefore, without examining the remaining grounds of appeal by the Defendant, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)