The meaning of “Alteration” in the crime of altering private documents / In a case where the part already altered by a person without authority among the contents of documents is re- modified without authority, whether the crime of altering private documents is established (negative)

Article 231 of the Criminal Act

Supreme Court Decision 2010Do15206 Decided September 27, 2012 (Gong2012Ha, 1767)

Defendant

Defendant

Law Firm (Lipon Law, Attorneys Ji-chul et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2019No3600 Decided February 14, 2020

The judgment below is reversed, and the case is remanded to the Seoul Central District Court.

Judgment ex officio is made.

1. Of the facts charged against the Defendant, the summary of the crime of altering private documents and uttering of private documents as of August 28, 2017 are as follows.

On June 2002, the Defendant: (a) stated in the column of “person who received the tax invoice issued by Nonindicted Co. 1 to Nonindicted Co. 2” on April 10, 2002, which was issued by Nonindicted Co. 2, Nonindicted Co. 2, and Nonindicted Co. 3, the part of “Nonindicted Co. 3” in the “name Nonindicted Co. 2 and Nonindicted Co. 3”; (b) stated “Nonindicted Co. 4” on the same page; and (c) amended a copy thereof.

On August 28, 2017, the Defendant, in collusion with Co-Defendant 5 of the first instance trial, altered a tax invoice in the name of Nonindicted Co-Defendant 1 in the name of Nonindicted Co-Defendant 1 in a way to erase and copy the “non-indicted 4” as stated in the “person who received the altered tax invoice.” At that time, the Defendant used the altered private document by submitting it to Nonindicted Co-Defendant 5’s judge in charge of the civil litigation filed against Nonindicted Co-Defendant 6.

2. The first instance court and the lower court found the Defendant guilty of this part of the charges on the ground that the act of re-afusing the altered portion in a private document constitutes a crime of altering a private document.

3. In the crime of altering private documents, the term “afford” means that a person without authority writes a new probative value by altering the content of a document so that it does not infringe the identity of the document, and the part altered by a person without authority cannot be said to be the part duly formed. Therefore, even if the content of the document was modified without authority again by a person without authority, the crime of altering private documents does not constitute the crime of altering private documents (see, e.g., Supreme Court Decision 2010Do15206, Sept. 27, 2012).

4. We examine in light of the above legal principles. Since the Defendant, without authority around June 2002, altered the tax invoices in the name of Nonindicted Co. 1’s stock company by removing “Nonindicted 3” and recording “Nonindicted 4” without authority, the altered portion of “Nonindicted 4” cannot be deemed as a document duly formed. Therefore, even if the Defendant arbitrarily deleted the portion “Nonindicted 4” as indicated in the above facts charged, the crime of altering private documents is not established. The lower court erred by misapprehending the legal doctrine on alteration in private documents.

5. Therefore, of the lower judgment, the part concerning the crime of altering private documents and uttering of private document as of August 28, 2017 among the lower judgment should be reversed for the foregoing reasons. However, the foregoing reversed part is in a concurrent relationship with the remaining parts found guilty among the lower judgment, and thus, the lower judgment should be reversed in its entirety.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jung-hwa (Presiding Justice)