In a case where the applicant for a patent was forged and submitted to the Korean Intellectual Property Office by forging a patent-related title change document, such as a deed of transfer, and then the applicant changed his/her name, the case holding that there was no act of disposal

Article 347(1) of the Criminal Act

Defendant

Defendant

Suwon District Court Decision 2005No4648 Decided April 19, 2007

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

1. As to the forgery of private documents and the display of private documents

We examine the grounds of appeal.

In full view of the adopted evidence, the court below found the defendant guilty of each crime of forging a forged deed of transfer and uttering of a falsified document as mentioned above, and each crime of uttering of a falsified document by issuing six copies of a falsified transfer certificate and six power of attorney at the public service center of the Korean Intellectual Property Office located in Do, east-do, the Japanese patent attorney at around November 5, 2003, although the non-indicted transferred the right to obtain a patent of this case from the victim non-indicted to the Korean Intellectual Property Office in his name. In light of the records, the court below's fact-finding and judgment of the court below are just and acceptable, and there is no error of law such as misconception of facts against the rules of evidence as alleged in the grounds for appeal.

2. As to fraud

Before determining the grounds of appeal, we examine it ex officio.

On November 7, 2003, the lower court affirmed the first instance judgment convicting the Defendant of fraud that “the Defendant obtained the right to the patent of this case by deceptive means by allowing the employees in charge of the above Korean Intellectual Property Office to change the market price in the name of the non-indicted in the name of the victim by allowing the employees in charge of the above Korean Intellectual Property Office to change the applicant of the patent of this case under the name of the non-indicted in the name of the defendant,” among the facts charged of this case.

However, fraud is established by deceiving another person, making a mistake, and thereby making delivery of property or pecuniary advantage (see, e.g., Supreme Court Decisions 81Do529, Jul. 28, 1981; 81Do944, Feb. 9, 1982; etc.). Even if the defendant forged documents for change of the name, such as a certificate of transfer in the name of the victim, and submitted to the public official of the Korean Intellectual Property Office in Japan, thereby changing the name of the applicant for the patent of this case, it cannot be said that there was an act of disposal on the right to obtain the patent of this case, and it cannot be deemed that a public official of the Korean Intellectual Property Office in Japan has the authority to dispose of the right to obtain the patent of this case, and therefore, this part of the facts charged is difficult to be deemed to constitute fraud.

Therefore, the court below's finding guilty of fraud among the facts charged in this case is erroneous in the misunderstanding of legal principles as to the elements of a crime of fraud, which affected the conclusion of the judgment. Thus, the part of the judgment of the court below as to fraud cannot be maintained even if it is

3. Conclusion

Therefore, the part of the judgment of the court below regarding fraud should be reversed. Since this part of the judgment below and the crime of forging private documents and uttering of private document which the court below found guilty are concurrent crimes under the former part of Article 37 of the Criminal Act, one sentence 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 Kim Yong-dam (Presiding Justice)