[2] The case holding that the judgment below which acquitted the freight forwarder of the facts charged that the defendant interfered with the public official's execution of his duties by fraudulent means by submitting a report on the renewal of permission for the business every three years to the competent Gu office, along with a certificate of deposit balance issued by the method of disguised payment in the report, was erroneous in the misapprehension of legal principles

[2] The case holding that the judgment below which acquitted the freight forwarder of the charges of obstruction of the performance of official duties in fraudulent means on the ground that it is difficult for the public official in charge to verify the authenticity of the certificate of deposit balance, and that the certificate of deposit balance issued by the financial institution can generally be trusted in the contents of the certificate, as to the charges of obstruction of the performance of official duties of the public official by fraudulent means, when reporting the renewal of permission for the business that the freight forwarder shall report to the competent Gu office every three years, and submitting the certificate of deposit balance issued by the method of fictitious payment to the report

Defendant shall be punished by a fine of KRW 1,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted by 50,000 won into one day.

The Defendant is a person who runs a trucking transport brokerage business under the name of “○○ Press”, which is stipulated by the Trucking Transport Business Act.

As the Trucking Transport Business Act was amended by Act No. 7100 on January 20, 204, and the freight forwarding business has been changed from the registration system to the registration system, the defendant who registered the freight forwarding business with the Mayor/Do governor shall be deemed to have obtained permission from the Minister of Construction and Transportation pursuant to the Act amended pursuant to Article 18 (1) of the Addenda of the above Act. The defendant shall be deemed to have obtained permission from the Minister of Construction and Transportation on April 21, 2004 pursuant to Article 4 of the Addenda of the above Act. The defendant shall be deemed to have obtained permission on April 21, 2004, and he/she shall report matters concerning the permission standards every three years in order to verify whether the permission standards for trucking transport forwarding business have been complied with, pursuant to Articles 21 (5) and 3 (7) of the above Act and Article 38-2 (1) of the Enforcement Rule of the above Act, but the permission has not been revoked or has not been suspended for not more than six months until July 21, 20007.

However, as the Defendant did not secure more than KRW 100 million capital and it was impossible to maintain the license through a report on the permission for the trucking transport brokerage business in a normal way, the Defendant borrowed KRW 100 million from pro-Japanese Nonindicted 1 to the account in the name of the Defendant and issued a certificate of deposit balance by depositing KRW 100 million in the account in the name of the Defendant. The Defendant decided that the Defendant shall file a report on the permission for the trucking transport brokerage business by submitting to the competent authority the certificate of deposit balance, which is the document to prove that the Defendant temporarily secures the capital as above.

On July 16, 2007, the Defendant prepared a report on permission for trucking transport brokerage business in Ulsan-gu, Ulsan-gu, Ulsan-gu, by submitting a false certificate of deposit balance to the public official in charge of the affairs related to the renewal of permission and cancellation of permission or suspension of business of a public official by fraudulent means and at the same time, submitted a certificate of deposit balance prepared along with the above report to prove that the Defendant has secured at least KRW 100 million in capital. After receiving the periodic report on trucking transport brokerage business and receiving the report, the above public official in charge has the defendant send a notice of acceptance to the public official in charge of the above affairs. The defendant submitted a false certificate of deposit balance to the public official in charge of the affairs related to the cancellation of permission or suspension of business for not more than six months by submitting a false certificate of deposit balance to the public official in charge of the affairs related to the permission for trucking transport brokerage business by fraudulent means.

2. The judgment of the court below

As to the violation of the Trucking Transport Business Act, the court below held that the punishment provision for the person who reported the permission for freight forwarding business by unlawful means and operated the business does not exist literally, and even according to the interpretation of the related Acts and subordinate statutes, if the method of illegality is clearly divided into the regular report and the (new permission), the punishment is excluded, and if the method of illegality is involved in the periodic report, the selective permission is revoked, the suspension of business, and the penalty surcharge is imposed. As to the obstruction of the performance of deceptive act, the regular report constitutes a report which does not require acceptance, and even if the administrative agency accepted it, it is merely an act that confirms that the report was lawfully made. Thus, the report does not result in a specific and realistic obstruction of the performance of official duties for examining whether the public official in charge of the report is accepted or not, it cannot be deemed that the execution of official duties for examining whether the report is accepted by the public official in charge of the report, and the defendant's act as to this case is merely a violation of the punishment provision for the obstruction of official duties or the punishment provision of fraudulent act, and it cannot be applied.

3. Summary of grounds for appeal;

In full view of the purport of the amendment of the Trucking Transport Business Act without providing for the period of permission and the requirements for renewal thereof, and the substantial function of the periodic reporting system, where the duties of the competent authority on the periodic reporting of the freight forwarder fall under the business of "permission for renewal" and reports are made periodically by fraudulent or other illegal means, it constitutes an element of Article 48 subparagraph 2 of the Trucking Transport Business Act. In full view of the same Act and relevant statutes, the competent authority has the right to examine the periodic reporting of the trucking transport business operator, and thus has interfered with the examination of the acceptance of the report official. Even if there is no right to review the actual report, the court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.

4. Judgment of the court below

A. Determination as to the violation of the Trucking Transport Business Act

Article 48 subparagraph 2 of the former Trucking Transport Business Act (amended by Act No. 8852 of Feb. 29, 2008) refers only to a person who has mobilized unlawful methods in the course of obtaining a new permit for the freight forwarding business (see Supreme Court Decision 2009Do2259, Jul. 23, 2009).

Even in accordance with the indictment of this case, the defendant already reported on the existing freight forwarding business which had already been permitted by the competent administrative agency, and it cannot be subject to the punishment of the above Article because he did not apply for the permission of the freight forwarding business. Therefore, the judgment of the court below which acquitted this part of the charges is just, and the prosecutor's assertion is without merit.

B. Judgment on the obstruction of performance of official duties by fraudulent means

(1) In the crime of obstruction of performance of official duties by fraudulent means under Article 137 of the Criminal Act, the term "defensive means" means causing mistake, mistake, and land to the other party in order to achieve the purpose of the actor's act, causing misconception, mistake, and the use of land. In addition, even though a person liable to report is aware that there was a false or fraudulent fact, he/she submitted to the administrative agency a false statement by alleging the reason for report and submitting a false statement corresponding thereto, and the administrative agency had the person receive the report because he/she did not discover the reason for report and supporting materials that they were false, this constitutes a deceptive act by fraudulent means, and thus, the crime of obstruction of official duties by fraudulent means is established (see Supreme Court Decision 2008Do4400, Oct. 29, 2009).

According to evidence duly adopted and examined by the court below, the defendant took over 00 million won presses with permission for freight forwarding business, and filed a periodic report with the office of Ulsan Metropolitan City (hereinafter "the report of this case") around July 16, 2007. At the time, the defendant borrowed 100 million won from pro rata Non-Party 1 to pretend that he would have secured 100 million won of capital, and then issued a certificate of balance from the Agricultural Cooperative on June 29, 2007. The defendant immediately withdrawn 100 million won from the delivery of the report of this case, and then submitted a certificate of acceptance of the above balance to the Minister of Construction and Transportation with documents proving that the defendant has secured 100 million won or more of capital stock upon receiving the report of the same type of permission for freight forwarding business. In light of the legal principles as seen above, the court below stated that the defendant's report of acceptance of the report of this case is an official under the jurisdiction of the Ministry of Construction and Transportation within 3 months after receiving the report of this case.

3. Conclusion

Therefore, the prosecutor's appeal as to the violation of the Trucking Transport Business Act is without merit, and the prosecutor's appeal as to the obstruction of the performance of official duties by deceptive means is with merit, and since the court below acquitted all of the above charges, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

However, as the Defendant did not secure more than KRW 100 million capital and it was impossible to maintain the license through a report on the permission for the trucking transport brokerage business in a normal way, the Defendant borrowed KRW 100 million from pro-Japanese Nonindicted 1 to the account in the name of the Defendant and issued a certificate of deposit balance by depositing KRW 100 million in the account in the name of the Defendant. The Defendant decided that the Defendant shall file a report on the permission for the trucking transport brokerage business by submitting to the competent authority the certificate of deposit balance, which is the document to prove that the Defendant temporarily secures the capital as above.

On July 16, 2007, the Defendant prepared a report on the permission for trucking transport brokerage business in Ulsan-gu, Ulsan-gu, Ulsan-gu, Seoul-gu, with a document attesting that the Defendant has secured at least KRW 100 million in capital when preparing the above report, and submitted the certificate of deposit balance prepared together with the above report to the public official in charge who is not aware of the circumstances, and obstructed the public official in charge of the above service in relation to the renewal of the permission and the cancellation of the permission or the suspension of business for not more than six months by submitting a false certificate of deposit balance by fraudulent means to make it difficult to determine whether the Defendant satisfies the permission standards, and whether the public official in charge of the trucking transport forwarding business is subject to revocation of the permission or the suspension of business for not more than six months.

1. Police suspect interrogation protocol of the accused;

1. The prosecutor’s statement concerning Nonindicted 2

1. Each police statement made against Nonindicted 3 and 4

1. A report on permission for a freight forwarding business or a ledger of permission for a freight forwarding business;

1. A balance certificate;

Article 137 (Selection of Fine)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

It is so decided as per Disposition for the same reasons above.

Judges Park Jong-chul (Presiding Judge)