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The defendant's appeal is dismissed.
Reasons
1. Summary of grounds for appeal;
A. In accordance with the erroneous determination of facts E, I tried to prepare and deliver a promissory note with the amount of KRW 35 million in the name of E and to F. On the following day, H provided that “The above KRW 35 million out of the total amount of KRW 35 million was paid in cash and the remaining KRW 20 million was given in the form of a promissory note” to the Defendant, and that the Defendant would deliver a promissory note with KRW 20 million in lieu of KRW 35 million in the name of E, and thus, considering that E would have consented, the Defendant prepared a promissory note with KRW 20 million in the name of E and delivered it to F.
Therefore, the court below found the nominal E guilty despite the nominal E’s constructive consent.
B. Even if the Defendant is found guilty of unreasonable sentencing, the lower court’s punishment (two months of imprisonment, two years of suspended sentence, and eight hours of community service order) is too unreasonable.
2. Determination
A. Since the crime of forgery or alteration of a private document in a judgment on the assertion of mistake refers to the preparation by a person who is not authorized to make a document in the name of another person, if the nominal owner explicitly or implicitly consented to the preparation or alteration of the private document, it does not constitute the crime of forgery or alteration of the private document. Meanwhile, even if the nominal owner did not have the real consent of the nominal owner at the time of the act, if the nominal owner knew of the fact at the time of the act, considering all objective circumstances at the time of the act, it is presumed that he/she naturally consented, the crime of forgery or alteration of the private document is not established (see, e.g., Supreme Court Decisions 92Do3101, Mar. 9, 1993; 2002Do235, May 30, 2003). However, even if the nominal owner knows that there is no explicit consent or consent of the nominal owner, if the nominal owner knew that the document was prepared at the request of a person other than the nominal owner, it cannot be presumed that the consent was obtained.
(Supreme Court Decision 2007Do9987 Decided April 10, 2008).