[2] The case holding that an act of preparing false documents, such as a certificate of employment of a third party who was not actually engaged in the above company for the purpose of committing fraud and a withholding receipt for wage and salary income, even though the defendant acquired the company and obtained the consent to continue to use the name of the representative director of the company, constitutes the crime of forging private documents since it exceeds the delegated authority

[3] The case reversing the judgment of the court below on the ground that there was a ground falling under "when there is a change in punishment after the judgment was rendered" after the judgment of the court below was rendered

A. Summary of the facts charged and the judgment of the court below

Defendant 1, 2, 4, and 5 conspired, and as Defendant 5 did not actually have served in the name of the representative director of the non-indicted corporation in the name of the non-indicted corporation 1, Defendant 2 forged a tax withholding receipt for wage and salary income and a certificate of employment and exercised it as if he were in office in the above company, the court below found that Defendant 5 acquired the above company from the non-indicted 1 with the consent of the non-indicted 1 and operated the above company without paying the compensation for the name transfer under the name of the representative director and keeping the name of the representative director in the name of the non-indicted 1. Thus, the actual representative of the above company should be deemed to be Defendant 5. Therefore, the authority to prepare documents in the name of the non-indicted corporation shall be deemed to have been vested in Defendant 5. Thus, even if Defendant 5 prepared and exercised a false document in the name

B. The judgment of this Court

However, we cannot accept the judgment of the court below in light of the following legal principles.

Since the forgery of a document refers to the preparation of a document by a person who has no authority to prepare the document in the name of another person, if there is an explicit or implied consent or delegation of the nominal owner in preparing the private document, it cannot be deemed to constitute the crime of forging the private document, even if there is a delegation of authority to prepare the document (see Supreme Court Decision 97Do183, Feb. 24, 1998). However, even if there is a delegation of authority to prepare the document, if the document is prepared by the delegated person for the first time with the delegated authority, the crime of forging the private document is established, and only if the document is prepared by abusing it within the scope of the delegated authority, the crime of forging the private document is not established (see Supreme Court Decision 83Do2257, Oct. 25, 1983).

According to the facts acknowledged by the court below, Defendant 5 was entrusted by Nonindicted 1 with the authority to prepare documents in the above company name with the consent of Nonindicted 1 to continue to use the name of the representative of the non-indicted 1 when acquiring the non-indicted 1 corporation, which he was the representative of the non-indicted 1. However, in this case, the non-indicted 1 did not have any evidence that the non-indicted 1 participated in or lent the name to the defendant's fraudulent act, and Defendant 5 also did not approve the preparation of documents as stated in the facts charged if he knew of the facts, the non-indicted 1's consent to prepare documents in the name of the above company (non-indicted 1) shall not be deemed to have been delegated only to Defendant 5 with the authority to prepare documents within the scope of the scope of the company's normal business. Thus, in fact, the act of preparing false documents, such as a certificate of employment payment and a receipt of wage and salary income tax, etc. that the third party was an employee of the above company and was entrusted with the authority to prepare documents.

Therefore, the judgment of the court below which acquitted the defendant of this part of the facts charged is erroneous in the misapprehension of legal principles as to the crime of forging private documents, which affected the conclusion of the judgment, and the prosecutor's ground of appeal pointing

2. As to Defendant 3’s appeal

A. Judgment on the grounds of appeal

In this case where the above defendant was sentenced to imprisonment for less than 10 years, the argument that the court below’s punishment is excessive cannot be a legitimate ground for appeal.

B. Ex officio determination

The court below acknowledged the facts that Defendant 3 had a previous conviction which became final and conclusive as stated in its judgment, and maintained the judgment of the court of first instance which sentenced the crimes of Article 39(1) of the Criminal Act and the crimes of Article 2 of the Judgment, which were committed before the crime and its punishment are finalized, on the ground that the crimes of Article 9 of the judgment of this case are concurrent crimes of Article 37 of the Criminal Act.

However, when there is a crime which was revised by Act No. 7623 of July 29, 2005, which was subsequent to the judgment of the court below, and was not adjudicated among concurrent crimes, Article 39(1) of the Criminal Act, which was amended by Act No. 7623 of the Criminal Act, and Article 39(1) of the Criminal Act, the punishment for the crime shall be imposed at the same time in consideration of equity between the crime and the crime for which the judgment became final and conclusive. In such cases, the punishment may be mitigated or exempted, and the Addenda stipulates that applying the previous

Therefore, in this case where the application of the previous provision does not constitute a case favorable to the defendant, the amended law is applied to the part of the crime of Defendant 9, which was committed before the judgment of the court below became final and conclusive. As such, this part of the judgment of the court below constitutes "when there is a change in punishment after the judgment" as provided in Article 383 subparagraph 2 of the Criminal Procedure Act, and in this regard, the part of the judgment of the court below as to the crime of Defendant 9 as provided in the judgment

3. Conclusion

Therefore, the part of the judgment of the court below as to the non-guilty portion and the crime No. 9 of the judgment of the court below is reversed, and this part of the case is remanded to the court below for a new trial and determination. Defendant 3's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)