Whether the crime of alteration of securities is established in a case where a new part of the content of securities already modified is modified without authority (negative)

In the crime of alteration of securities, “the alteration” means that a person, who is not authorized, makes a change to the extent that the content of securities is not prejudicial to the identity of the securities, and the portion altered by a person who is not authorized as such cannot be said to have been duly formed. Therefore, even if a part already altered by a person who is not authorized, from among the contents of securities, was modified without authorization, the alteration of securities is not established.

Article 214 of the Criminal Act

Supreme Court Decision 2005Do4764 Decided January 26, 2006 (Gong2006Sang, 369) Supreme Court Decision 2008Do9494 Decided December 24, 2008 (Gong2009Sang, 142)

Defendant

Defendant and Prosecutor

Incheon District Court Decision 2008No126, 2009No2924 Decided October 22, 2010

All appeals are dismissed.

The grounds of appeal are examined.

1. Judgment on the grounds of appeal by the prosecutor

In the crime of alteration of securities, “the alteration” means that a person, who is not authorized, makes a change to the scope that does not impair the identity of the securities (see, e.g., Supreme Court Decision 2005Do4764, Jan. 26, 2006). The portion modified by a person who is not authorized, cannot be said to have been genuine. Therefore, even if the portion previously modified by a person who is not authorized, from among the contents of securities, was modified without authorization, the crime of alteration of securities is not established.

In the same purport, as stated in this part of the facts charged, the defendant changed the payment date of a promissory note without authority, and thereafter, the conclusion of the judgment below that even if the defendant changed the aforementioned changed part, it did not constitute a crime of alteration of securities is justifiable. The court below did not err by misapprehending the legal principles on the establishment of a crime of alteration of securities, as otherwise alleged in the ground of appeal.

2. Judgment on the Defendant’s grounds of appeal

The Defendant’s argument in the grounds of appeal is the purport that the lower court’s judgment was unlawful, inasmuch as it did not constitute a crime of alteration of securities and theft as stated in the facts charged of this case, even though the Defendant did not have any error in fact-finding.

However, the recognition of facts and the selection and evaluation of evidence conducted on the premise thereof belong to the discretionary authority of the fact-finding court unless it goes beyond the bounds of the principle of free evaluation of evidence. In light of the records, the reasoning of the judgment below cannot be found any error exceeding the bounds of the principle of free evaluation of evidence. Therefore, the above ground of appeal is merely to criticize matters falling under the exclusive authority of the

In addition, according to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is permitted only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years is sentenced. As such, in this case where a more minor sentence is imposed on the defendant, the argument that the sentence of the court below is too unreasonable and thus, the argument to the effect that the defendant's punishment is

3. Conclusion

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

Justices Kim Chang-suk (Presiding Justice)