Whether an act of making a notarial deed to transfer a false bond constitutes an act of false entry in the original notarial deed (negative)

The crime of false entry in the original of a notarial deed under Article 228(1) of the Criminal Act is a crime the legal interest of which is protecting the public credibility of public documents concerning the rights and duties of which is recognized as special credibility. It is established by making a false report against the truth to a public official, and having a public official enter false facts inconsistent with substantive relations concerning the matters to be proved in the original of a notarial deed. Meanwhile, according to the Notary Public Act, a notary public takes the duty of preparing, etc. a notarial deed as to legal act or facts concerning private rights at the commission of the parties and other related persons (Article 2), a notary public takes the duty of preparing, etc. a notarial deed with regard to legal acts or other facts (Article 2), he/she takes the hearing of the deed in preparation of the deed, and records the method of the experiment in writing (Article 34). Where a notary public takes his/her statement on his/her request and prepares a notarial deed concerning the transfer of claims, and it is not true that the transfer of claims was done in a notarial deed, and it cannot be seen that the transferor actually establishes a legal act.

Article 228(1) of the Criminal Act, Articles 2 and 34 of the Notary Public Act

Supreme Court Decision 2002Do638 Delivered on July 25, 2003

Defendant

Defendant and Prosecutor

Changwon District Court Decision 2001No264 delivered on September 4, 2001

All appeals are dismissed.

1. Judgment on the defendant's appeal

According to the reasoning of the judgment of the court below, the court below affirmed the judgment of the court of first instance which convicted the defendant of attempted fraud among the charges of this case against the non-indicted 1, and affirmed the judgment of the court of first instance which convicted the non-indicted 2 of the attempted fraud among the charges of this case.

Examining the adopted evidence of the judgment below and the judgment of the court of first instance cited by the court below in light of the records, it is reasonable that the court below found the defendant guilty of attempted fraud against the defendant, and there is no error in the misapprehension of the rules of evidence, as otherwise alleged in the ground of appeal, in the misapprehension of the rules of evidence, as alleged in the ground of appeal.

2. Judgment on the prosecutor's appeal

The offense of false entry in the original of a notarial deed under Article 228(1) of the Criminal Act is a crime the legal interest of which is protecting the public confidence in public documents concerning the rights and duties of special credibility is established by filing a false report contrary to the truth with respect to a public official, and having a public official enter false facts inconsistent with the substantive relations concerning the matters proved in the original notarial deed (see Supreme Court Decision 2002Do638, Jul. 25, 2003). Meanwhile, according to the Notary Public Act, a notary public takes charge of preparation, etc. of notarial deeds as to juristic acts and other facts concerning private rights at the commission of the party or other related persons (see Article 2), the notary public takes charge of preparing a notarial deed (see Article 2), he heard statements, and records other facts tested, and enters methods of the notarial deed in the original notarial deed (Article 34). Thus, even if a notary public does not know that the transfer and acquisition of claims was made by a notary public with respect to such juristic act, it cannot be deemed that the transferor actually made a juristic act as to be established.

In light of the records, the defendant is urged to repay his debts from the non-indicted 2, who is the creditor of the non-indicted 1, and the fact that the defendant, when selling the forest and field owned by the defendant to the non-indicted 1, agreed that the non-indicted 1 will take over the principal and interest of the defendant borrowed from other creditors as collateral in lieu of paying the above forest and field, and despite the fact that the non-indicted 1 does not have any obligation to receive the purchase price, he prepares a false statement of cash payment stating that the non-indicted 1 would have any obligation to pay the balance of forest and field purchase price, and prepares a false statement of this case upon the request of the non-indicted 2 at the main office of the non-indicted 1, which is prepared by the non-indicted 2. The non-indicted 2 cannot be seen as including the non-indicted 1's statement that the defendant had any obligation to pay the balance of forest and field to the non-indicted 1 in the notarial deed, and it can be seen that the defendant's actual obligation to transfer the non-indicted 2's obligation.

In the same purport, the court below affirmed the judgment of the court of first instance which acquitted the defendant of the entry of the original of the notarial deed in the facts charged against the defendant and its exercise of the notarial deed, on the ground that the defendant's claim transferred to the non-indicted 1 is not proved to be false, and thus it does not constitute the case where the defendant made the non-indicted 2 enter the facts of the notarial deed in the notarial deed of this case, and even if the incidental agreements as to the transferor's warranty liability do not prove the existence of the transferred claim itself, it is just to affirm the judgment of the court of first instance which acquitted the defendant of the entry of the notarial deed of this case in the notarial deed of this case and it is not erroneous in the misapprehension of legal principles

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)