Whether a copy of a document constitutes a document which is the object of forgery and uttering (affirmative)

(Majority Opinion)

Documents which have copied originals by mechanical means using photographs, reproduction machines, etc., and so-called duplication documents, unlike mere copies by writing methods, etc., even if copies, there is no room for the reproduction of the reproduction's awareness. Since the content from the content to the scale and form of the original, the actual reproduction of the original is presented, the relevant person is believed to have the same original as that of the original, and thus, he/she has the relevant person believe that the original exists, and even in its contents, he/she has the same sense as that of the original. Furthermore, in light of the situation where the function as a means of proof increases as a substitute for the original, it is necessary to protect social credibility in light of today's daily transactions, a copy of the reproduced document constitutes document forgery and document which is the object of the crime of uttering.

(Dissenting Opinion)

In a case where a copy of a forged document is made by an electronic reproduction machine, it is difficult to regard it as a document under Article 231 of the Criminal Act, and it is difficult to regard it as an act of creating and submitting a copy in the name of a third party. In such a case, it is difficult to regard it as an act of forging a document under Article 231 of the Criminal Act. In such a case, it is an analogical interpretation prohibited by the principle of no punishment without law, and if it is interpreted that the electronic copy is included in the concept of document under Article 231 of the Criminal Act and it does not include a copy, it would be a multilateral interpretation of the provision, which would be contrary to the clarity of the criminal law and regulations

(Separate Opinion)

The act of copying the original of a forged document itself is nothing more than reproducing the contents of the indication of the document whose authenticity of the document was infringed upon due to the completion of forgery, and it does not infringe on the authenticity of the original document, and therefore it is not a forgery of a document. Therefore, it is not reasonable to regard the act of preparing a copy as a forgery of a document. However, a copy which copied a forged document by mechanical means, such as an electronic reproduction or a photograph reproduction, etc., has the function of reproducing the appearance and awareness of the original document as it is and delivering the original document as it is to another person, unless it is intended in the reproduction process. Thus, the act of presenting a copy is to present the original document by an indirect method that provides the other party with the appearance and awareness of the original document by means of mechanical reproduction, and thus, it constitutes a crime of uttering of a

Articles 231 and 234 of the Criminal Act

Supreme Court Decision 69Do85 delivered on Nov. 26, 1969, Supreme Court Decision 77Do4068 delivered on Apr. 11, 1978, Supreme Court Decision 81Do2715 delivered on Dec. 22, 1981, Supreme Court Decision 82Do715 delivered on Sept. 13, 1983 (defluence), Supreme Court Decision 85Do2138 delivered on Nov. 26, 1985, Supreme Court Decision 87Do2709 delivered on Apr. 12, 198 (defluence) (defluence) Supreme Court Decision 88Do1680 delivered on Oct. 24, 1988 (defluence)

Defendant 1 and one other

Prosecutor

Busan District Court Decision 86No2956 delivered on January 16, 1987

The judgment below is reversed, and the case is remanded to Busan District Court Panel Division.

We examine the prosecutor's grounds of appeal.

Of the facts charged in the instant case, the Defendants forged a letter of delegation in the name of Kim-D Co., Ltd. with respect to the fact-finding that the right to contract for the construction of golf course facilities was delegated to Defendant 2 at the time of the first trial on March 25, 1983, for the purpose of exercising the right in collusion, and copied it, and presented its copy to the victim library as if the copy was duly formed.

According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which acquitted the defendants for the same reason on the ground that the document in the crime of uttering of forged documents as provided in the Criminal Act refers to the document itself which indicates the intention of the person who prepared the document, so in case where the original is reproduced by mechanical means, the copy or copy does not constitute the document of the person who committed the above crime, unless the copy or copy is certified.

However, the legal interest in the crime of forging and uttering of documents is not the value of the document itself, but the public credit for the document, so it is not necessarily reasonable to regard the document which is the object of the crime of forging documents only to the original document, and even if a copy of the document is recognized as having the same awareness as the original document and having social functions and credibility such as the original document, it is reasonable to include it in the concept

Therefore, even among copies of documents, the so-called document duplication by mechanical method using photographs or duplication machines, etc., there is no room for the awareness of the reproducer unlike simple copies by writing methods, etc., and since the contents show the original from its contents to its form and form, it is believed that there is an equivalent original, and thus, it is necessary to protect social credibility in light of the situation where the duplication document has increased its function as a means of proof instead of original document in today's ordinary transactions, it is necessary to protect the original document's original document's original document's original document's original document's original document's original document's original document's original document's original document's original document's original document's original document's original document's original document's original document's original document's original document's original document's original document's original document's original document's original document's original document's original document's original document's original document's original document's original document's original document's original document's use of document's original document's original document's original document's original document's 188.2.3.8.

Therefore, the part of the judgment of the court below concerning the uttering of the above investigation document and the forgery of private documents, and the guilty part concerning fraud which are concurrent crimes under the former part of Article 37 of the Criminal Act are all reversed, and the case is remanded to the Busan District Court Panel Division which is the court below. It is so decided as per Disposition by the assent of all participating Justices except for the dissenting opinion on the transfer of a judge and the separate opinion on the transfer of a judge

The dissenting opinion of the Supreme Court's separation of judges is as follows.

As stated in the majority opinion, it is acceptable that the document which copied the original by mechanical means using a photographer or duplicateer, etc., and the so-called duplicate document shall be reproduced as it actually shows the original from the content of the document to its form and form, and thus, it is likely that the related person be believed to exist the same original, and it is necessary to protect the social credibility of the authentic document, since the reproduction document has increased its function as a means of proving the original as a substitute for the original document in daily transactions.

Therefore, in the case of this case, if the power of attorney was forged as if he had been delegated, copied the forged power of attorney with the electronic reproduction, and then presented the copy as if he was the authentic power of attorney, the act would not be deemed to be unlawful, too bad and bad, in the event that it was presented as if it were the authentic power of attorney.

However, only the fact that a certain act of an actor is illegal and extremely bad cannot be punished.

In other words, unless it does not correspond to the penal provisions specified in the law, any illegality may not be punished even if it is a grave and extremely bad behavior (Article 11 of the Constitution).

The principle of no crime without the law requires the legislator to clearly define the elements and legal effects of the crime so that the general public can understand it well, and requires the judge to interpret the punishment law as much as possible.

Therefore, it is prohibited that the legal provision on other similar facts should be applied by analogy to the facts that are not clearly indicated in the legal provision. In other words, in the interpretation of the penal provision, it is not possible to interpret analogical interpretation or expand interpretation.

However, the majority opinion argues that the act of electronic copying of forged power of attorney shall be punished as the crime of forging private document under Article 231 of the Criminal Act, and the act of presenting copies shall be punished as the crime of uttering of falsified Private Document under Article 34 of the Criminal Act.

Article 231 of the Korean Criminal Code provides that a person who forges or alters another person's document or drawing concerning the right and duty or certification of fact for the purpose of uttering shall be punished by imprisonment for not more than five years. It is problematic in the above provision that what is the meaning of "a person who forges a document" is, first, it is interpreted as "a person who forges a document" and then interpreted as "a document" as "a document" and then, it is possible to solve the problem.

However, until now, documents generally refer to the expression (written) in the state bound on the object, such as a letter, etc. of the person who prepared the documents, and the document refers to the original of the document, and it has been considered not to be included in the concept of the document. The concept of the act of forging the document has been unauthorized to prepare the document in the name of another person. Therefore, it is difficult to regard the forged power of attorney as the document as the document stipulated in Article 231 of the Criminal Act in the case where a copy has been made with an electronic reproduction machine, and it is difficult to regard it as the document in the name of another person. In other words, it is difficult to see that the act of making the copy and making it constitutes an act of forging the document, and it is difficult to see that the reproduction is also a document as defined in Article 231 of the Criminal Act.

However, in such a case, it is believed that recognizing document forgery and establishment would make an analogical interpretation prohibited by the principle of no crime without the law.

Even if there is a need to protect the social credibility of a document by means of an electronic reproduction, it is unreasonable for the court to render a judgment of innocence and apply the penal law by emphasizing the necessity of punishing such act, unless there is a clear provision for the punishment of such act. Measures to be taken against such an incident should be legislative and the court is believed not to cope with by analogical interpretation of penal law. Furthermore, unlike a simple copy by the method of writing, etc., the Majority Opinion attempts to distinguish between the case where a copy is made by creating a copy and the case where a copy belongs to the case where there is such original and the case where a copy is made by presenting an electronic copy and that there is such original, but if it is interpreted that the electronic copy is included in the concept of document as provided in Article 231 of the Criminal Act, and that it does not include a copy, it would result in a violation of the clarity of the criminal law and regulations.

As above, the Supreme Court Decision 77Do4068 delivered on April 11, 1978 should be maintained, and the Prosecutor’s appeal of this case should be dismissed.

The separate opinion by the Supreme Court of Justice Lee Chang-chul is as follows.

(1) The majority opinion argues that a copy of a forged document copied by mechanical means, such as electronic reproduction, photograph reproduction, etc., has the same awareness and social functions and credibility as the original document, and is the object of the document forgery and the execution of the document. Therefore, the preparation and use of the copy constitutes the crime of forging documents and the crime of uttering of the document. However, even though the basic elements of the elements of crime under the Criminal Act are acts, and the basis of punishment is the act of forgery under the Criminal Act, even though the fact of the forgery is sought, it is difficult to accept by the logic that the copy of the falsified document is a forgery of the document, regardless of the fact of the act of forgery, as long as the copy of the document is combined with the concept of document that is the object of the document.

The object of the crime of forging a document refers to a document or other object showing a specific consciousness and a name of preparation in lieu of a letter or letter, and the protected legal interest of the crime of forging a document is to protect the social function and credibility as a means of proof held by such document. In light of the concept of such document, a copy which copied the original document by mechanical means, such as an electronic reproduction or photograph reproduction, etc., is also used as a document indicating a name of preparation in the same sense as that of the original document, and thus, it is difficult to deny the nature of the document, since it is recognized as a document indicating a name of preparation in the same sense as the original document.

However, the act of preparing such a copy is merely a reproduction of the contents of the indication of the document whose authenticity of the document was infringed upon due to the completion of forgery, and it does not infringe on the authenticity of the original document, and it is not a forgery of the document. (However, if a copy is prepared by using mechanical methods again, and then a copy expressing a description different from that of the original document is modified or supplemented, then the act of preparing the copy itself constitutes a violation on the authority of the person in charge of preparing the document, and thus it constitutes a document).

(2) As such, the act of copying a forged document does not correspond to the category of document forgery, and thus cannot be deemed as a forged document. However, the act of using a copy to another person can be seen as the act of using the original copy through a reproduction method, and therefore, the crime of uttering of a forged document should be deemed to constitute the crime of uttering

The uttering of a forged document refers to presenting a forged document to another person as if it were a authentic document or keeping it available for public perusal. Here, the presentation means the presentation of the appearance and awareness of the document itself so that the other party can be identified by a scambling action. It includes not only a direct case but also a case in which the presentation is made through an intermediary which indirectly delivers the appearance and awareness of the document as they are in the original form, and also a case in which the presentation is made. Examples of indirect cases include cases in which a forged document is presented by consularizing it to another person by a exchange registration or by sending it by facsimile. In such cases, it is deemed that the original of the forged document was indirectly presented by means of a means such

However, a copy which copied a forged document by mechanical means, such as electronic reproduction or photograph reproduction, etc., has the function of transmitting the original document’s appearance and awareness to another person, as it is, unless he/she does not engage in intentional manipulation in the reproduction process. Thus, such a copy presented that the other party can recognize the appearance and awareness of the original document by means of mechanical reproduction, which can be said to be presenting the original document by indirect methods such as consular method of exchange registration or facsimile transmission method.

Therefore, even if an act of copying a forged document is not an act of forging the original document, and it cannot be deemed as a forged document itself, the act of presenting the copy shall be deemed as constituting the crime of uttering of the forged document, because it presents the original document through the intermediary means of copying the original document (in case where a copy different from the original is prepared by manipulating it in the process of copying the original document, the reproduction itself is the forgery document itself, and exercising it is no longer the exercise of the forged document, as a matter of course.)

(3) Ultimately, since copying of forged documents by mechanical means, such as electronic copying or copying of photographs, etc., does not constitute forgery of a document, the Majority Opinion does not agree with the conclusion that copying of forged documents is also a forgery of a document, and that the copy itself constitutes the uttering of a forged document. However, even if a copy itself is not a forgery document, the act of presenting it constitutes the crime of uttering of a forged document as an exercise of the original document. In this regard, the judgment of the court below cannot be maintained and thus, the conclusion of reversal is consistent with the conclusion of the judgment of the court below.

Justices Lee Jong-il (Presiding Justice) Kim Young-chul Kim Young-ju (Presiding Justice) and Lee Jae-young, Lee Jae-ho, Lee Jae-ho, Lee Jae-ho, Lee Jae-ho, Lee Jae-won Kim Jong-ho, Kim Jong-young