[1] Whether a reporter’s act of entering false facts in a report or submitting false explanatory materials to an administrative agency constitutes a crime of obstruction of performance of official duties by fraudulent means (negative in principle)

[2] In a case where registration was completed because a registrar failed to discover false explanatory materials, etc. submitted by the applicant for registration, whether the crime of obstruction of performance of official duties by fraudulent means can be established (affirmative), and whether the same applies to a registrar, even if there is no authority to examine whether the application for registration is consistent with the substantive legal relationship (affirmative)

[1] The crime of obstruction of performance of official duties by fraudulent means is established when the other party misleads the other party, misleads the other party, commits a false act or makes a false disposition using the same, thereby obstructing the specific and practical performance of official duties. Therefore, in the case of “report” effective by unilateral notification to an administrative agency, even if the reporter enters false facts in the report or submits false explanatory materials, it cannot be deemed as constituting a crime of obstruction of official duties by fraudulent means, barring special circumstances, barring special circumstances. However, in a case where an administrative agency conducts duties such as examining whether to grant or permit by fraudulent means or deciding whether to accept the report only when the applicant or the applicant satisfies specific qualification requirements upon examining whether to grant or permit by fraudulent means, unlike the above “report”, if the public official in charge has sufficiently examined false explanatory materials submitted by the applicant or the applicant, but failed to discover them, or had the applicant receive it, and thus, the act or disposition misleads by fraudulent means caused by the administrative agency, thereby resulting in a crime of obstruction of official duties by fraudulent means constitutes a crime of obstruction of official duties.

[2] Inasmuch as an application for registration is scheduled to be examined and disposed of by a registrar according to the application rather than a simple “report,” the crime of obstruction of performance of official duties may be established by fraudulent means if the registration was completed because the registrar failed to discover false explanatory materials, etc. submitted by the applicant after sufficiently examining them as required by the registrar. Although a registrar has the authority to examine whether the documents necessary for the application for registration were submitted in accordance with the Registration of Real Estate Act, and whether the submitted documents were formally authentic, it does not mean that there is no authority to examine whether the application for registration conforms with the legal relationship under the substantive law,

[1] Article 137 of the Criminal Act / [2] Article 137 of the Criminal Act

[1] Supreme Court Decision 2002Do2064 Decided September 4, 2002 (Gong2002Ha, 2379), Supreme Court Decision 2008Do11862 Decided February 26, 2009 (Gong2009Sang, 431), Supreme Court Decision 2010Do14696 Decided April 28, 201 (Gong201Sang, 1215), Supreme Court Decision 2010Do7034 Decided September 8, 2011

Defendant 1 and one other

Defendants

Attorney Kim Sung-chul

Jeonju District Court Decision 2015No671 Decided October 14, 2015

All appeals are dismissed.

The grounds of appeal are examined.

1. The crime of obstruction of performance of official duties through fraudulent means is established when the reporter enters false facts in the report or submits false explanatory materials in the case of “report,” the effect of which is completed by unilateral notification to an administrative agency, by causing mistake, mistake, and land to the other party, and causing the other party to do so, thereby obstructing the specific and realistic performance of official duties. Therefore, barring special circumstances, such report alone cannot be deemed to constitute the crime of obstruction of performance of official duties by fraudulent means (see Supreme Court Decision 2010Do7034, Sept. 8, 2011, etc.). However, in cases where an administrative agency conducts duties such as examining whether to grant authorization or permission or to determine whether to accept the report only when meeting specific qualification requirements upon receiving an application, unlike the above “report,” the applicant or the applicant’s official in charge of false explanatory materials submitted by the administrative agency, but failed to discover such false explanatory materials as his/her name, or her fraudulent act was declared 200 or 204, thereby causing the applicant or the applicant’s fraudulent act to be established.

However, since an application for registration is not a simple “report,” but a registrar plans the examination and disposition following the application, the crime of obstruction of performance of official duties by fraudulent means may be established if the registrar failed to discover false explanatory materials, etc. submitted by the applicant, even though the registrar sufficiently examined such false explanatory materials, and the registration was completed. The registrar has the authority to examine whether the documents necessary for the application for registration were submitted in accordance with the Registration of Real Estate Act, and whether the submitted documents are formally authentic, but it does not mean that there is no authority to examine whether the application for registration is consistent with the legal relationship under the substantive law.

In the same purport, the court below is just in finding the defendants guilty of all the charges of this case against the defendants on the ground that "In order for the non-indicted who is the person liable for registration to file an application for registration of ownership transfer in the name of defendant 1, the non-indicted to the registry, or the attorney or a certified judicial scrivener entrusted by the non-indicted who is the person responsible for registration, and submitted to the registrar the confirmation document necessary for the application for registration by proxy, instead of the non-indicted who is the person responsible for registration, and as long as the registration was completed accordingly, the crime of obstruction of performance of official duties by deceptive means is established" is established. There is no error in the misapprehension of legal principles as alleged in the grounds of appeal.

2. In light of the relevant legal principles and records, the court below is just in rejecting the Defendants’ assertion as to the lawful act, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal.

3. Meanwhile, under Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed. Thus, in this case where a more minor sentence has been imposed against the Defendants, the argument that the sentencing of the sentence is unfair is

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

Justices Park Sang-ok (Presiding Justice)