[1] The meaning of "documents" in the crime concerning documents under the Criminal Code

[2] Whether image appearing in a computer monitor constitutes "documents" under the Criminal Act (negative)

[1] Articles 231 and 234 of the Criminal Act / [2] Articles 231 and 234 of the Criminal Act

[1] [2] Supreme Court Decision 2007Do7480 Decided November 29, 2007, Supreme Court Decision 2008Do1013 Decided April 10, 2008, Supreme Court Decision 2010Do6068 Decided July 15, 2010 / [1] Supreme Court Decision 2004Do788 Decided January 26, 2006 (Gong2006Sang, 365) Supreme Court Decision 2010Do2705 Decided July 29, 2010 (Gong2010Ha, 1767)

Defendant

Prosecutor

Suwon District Court Decision 2011No2261 decided July 14, 2011

The non-guilty part of the judgment of the court below shall be reversed, and that part of the case shall be remanded to the Suwon District Court Panel Division.

The grounds of appeal are examined.

1. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. Of the facts charged, the Defendant: (a) sent 12:0-13:00 on April 22, 2010 to Nonindicted Party 1 and Defendant for the purpose of exercising the rights and duties of alteration of the private document; (b) then sent the original copy of the contract to Nonindicted Party 1 and Defendant for the purpose of uttering at 0:00-13:00 on April 22, 201; (c) then sent the copy of the contract to Nonindicted Party 1 and the copy of the contract to use it on the computer screen for the purpose of uttering “0-7:00-7:000-6:000-7:00-7:00-7:00-7:00-00-000-000-00000--000000--00000--00000--0000--000--000--000--000.

B. On the first trial date of the first instance court, the Defendant appeared and recognized all the facts charged in this case including this part of the facts charged. The first instance court acknowledged the Defendant guilty of all the facts charged in this case and sentenced the Defendant to a suspended sentence of two years and 80 hours for a prison term of eight months. The prosecutor appealed only on the ground of unfair sentencing with respect to the first instance judgment.

C. The court below concluded the pleading on the first day of the court below's first day, and until then, there was no special issue as to whether each of the above private documents has been altered on the computer screen or whether it is a printed document, and the court below also did not exercise the jurisdiction to direct the lawsuit or to express opinions as to this part. The court below reversed the judgment of the first instance court and acquitted the defendant of all of the altered private documents on the grounds that "the image shown on the computer screen does not correspond to the document related to the crime under the Criminal Act, since the image files created by the defendant do not correspond to the document related to the document under the Criminal Act, even if he partly changed the contents of the image file, it cannot be seen as identical to the alteration of the contents of the document which was duly formed, and it can be established on the premise that there was the altered private documents."

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. In the crime related to documents under the Criminal Act, documents are copied by a mechanical device that can see the original or its social function, credibility, etc., which is an indication of the intention or concept stated on the material object continuously by letters or the virtual code that can replace them, and their contents can be admitted as evidence for material matters in law and social life (see, e.g., Supreme Court Decision 2004Do788, Jan. 26, 2006). Thus, the court below affirmed that the image shown on the computer monitoring screen does not constitute "documents" related to documents under the Criminal Act since it is merely shown on the screen when a program is implemented to see image files at that time, and it does not constitute "documents" related to documents under the Criminal Act (see, e.g., Supreme Court Decision 2007Do7480, Nov. 29, 2007).

B. However, as seen earlier, the facts charged as to the alteration and uttering of the private document of this case are as follows: “The defendant made the original copy of the office charter contract of this case by copying it in a slicker, set it on the computer screen, and then cut it in an official space, and then printed it in a slickter with an official seal, and then sent the amount of security deposit to 30 million won (30,000,000 won) by printing it out with an official seal, and then sending it by facsimile.” Thus, the facts alleged in the facts charged in this part of the facts charged are as follows: “The alteration of the office charter contract of this case, which is a “documents printed in a slickter,” not the use thereof, is an act of altering the office charter contract of this case and exercising it.”

Nevertheless, the court below found the prosecutor not guilty of the charges that the prosecutor did not prosecute, i.e., alteration of the image files on the computer monitoring screen and its exercise as if they were the charges of this part of the charges. In so doing, the court below did not err by misapprehending the legal principles on the scope of objects to be tried, which affected the conclusion of the judgment, and thus

C. Next, we examine the alteration and uttering of the instant Nos. 2, 3, and 2.

As seen earlier, this part of the facts charged states that "the defendant copied the original copy of the certificate of deposit/trust balance to a slicker, and then altered one copy of the certificate of deposit/trust balance at will after the date of issuance, and forwarded it by facsimile and exercised it." As to the alteration of a private document, it cannot be said that the contents of the facts charged as to the alteration of the private document alone are as follows: (i) whether the subject of the crime is "video on the computer screen" or "a copy of the certificate of deposit/trust balance", which is "documents printed in a slick", is not clear; (ii) at least in the facts charged as to the exercise of the private document, the subject and method of the exercise are specified as "written by facsimile"; and (iii) according to the records, the defendant made a statement that "after the can can fill the original copy of the above certificate and then put it into a new date, and sent it by facsimile," and (iv) at the time of the prosecutor's investigation, it also appears that the defendant sent it by facsimile (see page 95).

Therefore, the court below should have deliberated and judged on whether the facts charged regarding the alteration of the private document and the alteration of the trust balance, which is a document printed out in a printer, is subject to the "certificate of deposit/trust balance" or merely subject to the image on the computer screen, in light of the specific progress of the litigation in this case, in the sense that the court below made clear the litigation relations in accordance with Article 141 of the Regulation on Criminal Procedure by taking into account the specific progress of the litigation in this case. However, the court below found the defendant not guilty of this part of the facts charged by deceiving this part of the facts charged as the fact of the alteration of the private document and the uttering of the altered private document on the computer screen without taking measures. In such a case, the court below erred by failing to exercise the right of explanation or failing to exhaust all necessary deliberations, which affected the judgment.

3. Therefore, the non-guilty part of the judgment below is reversed, and that part of 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 Lee Sang-hoon (Presiding Justice)