자격모용사문서작성등
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 7,000,000.
The above fine shall not be paid by the defendant.
1. Summary of grounds for appeal;
A. As to the mistake of facts or misapprehension of legal principles (i.e., preparation of qualification-use private documents, and the exercise thereof, the Defendant, under an agreement with D, transferred the F’s share in the restaurant to I, it is presumed that D naturally consented to the preparation of a power of attorney on the facts charged (hereinafter “instant documents”) so that D would also participate in the restaurant business, and only prepared the instant documents, and the Defendant did not have any intent to commit the preparation of qualification-use private documents.
In addition, in light of the fact that D operated a restaurant along with I, D should be deemed to have ratified the preparation of the documents of this case by the defendant ex post facto.
On the other hand, since D does not have the F's right to dispose of the F's shares, it is not possible to delegate any authority or authority to dispose of the shares to the defendant, even though D's agent qualification, the defendant prepared the document of this case.
Even if there is no legal meaning, and there is no crime of preparation of qualification-based private document.
With respect to the embezzlement of KRW 30,000,000 sales proceeds, when the Defendant and the F owned all the shares of the Victim N Co., Ltd. (hereinafter “victim Co., Ltd.”), the F made a proposal to trade through the personal account to prevent the Defendant from being subject to value added tax, and the Defendant only responded to this.
Therefore, the defendant should be deemed to have used the above payment with the consent of the victim company, and the defendant did not have the intention of illegal acquisition.
B. In light of the various sentencing conditions in the instant case of unfair sentencing, the lower court’s imprisonment (six months of imprisonment and two years of suspended sentence) against the Defendant is too unreasonable.
2. Determination
A. (i) Judgment on the assertion of mistake of facts or misapprehension of the legal principles, and the other party’s assertion on the preparation and exercise of qualification-based private documents.