209Do3524 A. Fraud

(b) Forgery of private documents;

(c) Exercising a falsified investigation document;

(d) Preparation of qualification specifications and private documents;

(e) Exercising qualification certificates or private documents;

(f) Violation of the National Land Planning

Defendant

Defendant

Attorney Noh Jeong-gu (Korean National Assembly Line)

Suwon District Court Decision 2008No1975 Decided April 16, 2009

July 9, 2009

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

The grounds of appeal are examined.

1. Article 308 of the Criminal Procedure Act, which provides for the forgery of private documents and the principle of free evaluation of evidence held by a judge, provides that the probative value of evidence shall be based on the free evaluation of the judge, is not because it is appropriate to find substantial truth, and thus, the judge at a fact-finding court, who has the discretionary power over the determination of evidence, shall take into account the perception obtained in the trial in fact-finding and the evidence examined in fact-finding. Furthermore, although the probative value of evidence is left to the free evaluation of the judge, the judgment shall conform to logical and empirical rules, and the degree of the formation of evidence in a criminal trial shall be sufficient enough to give a reasonable doubt (see Supreme Court Decision 2004Do221, Jun. 25, 2004, etc.).

The court below maintained the first instance court which found the defendant guilty of forging each private document and holding the same events on the grounds stated in its reasoning, but in light of the legal principles as seen earlier, the court below’s decision on this part is not acceptable for the following reasons.

First, according to the court below's judgment and the evidence duly examined by the court below, non-indicted 1 shall be 207.

6. The defendant received the proxy form from the defendant on June 29 and again brought about the defendant's seal imprint. The defendant copied this form and delivered it to the non-indicted 3, and the non-indicted 3 submitted it to the investigation agency. Since the power of attorney affixed with the non-indicted 2 among the evidence submitted by the prosecutor can be known as the same document, it is highly probable that both the power of attorney affixed with the non-indicted 2's seal imprint affixed as evidence were written on June 29, 2007. The defendant, on June 20, 2007, prepared the power of attorney with the non-indicted 2's seal imprint affixed on the non-indicted 7's letter of delegation. The defendant did not have any reason to find that the defendant's letter of attorney was not a new letter of attorney affixed on June 12, 2007, and the defendant's letter of attorney was not a letter of attorney affixed to the non-indicted 20's previous letter of attorney on June 29, 2007.

Next, according to the evidence duly examined by the court below, it is just that the court below found the defendant guilty of the violation of the power of attorney as of June 20, 2007. However, the prosecutor's exercise of the power of forgery in this part is obvious in the record that he did not institute a prosecution, but the court below erred in maintaining the first instance court which found the defendant guilty of the crime of the exercise of the power of forgery in this part, and it cannot be recognized that this part of the prosecution was just because the defendant was just before the defendant 3 on June 20, 207.

2. Preparation of qualification certificate, private documents and the occupation of such events;

Examining the reasoning of the judgment below in light of the records, even if Non-Indicted 2 stated the name and resident registration number of Non-Indicted 3 at the time of preparing a sales contract and a receipt on June 25, 2007, it cannot be deemed that Non-Indicted 2 delegated the authority to prepare a sales contract and a receipt on behalf of Non-Indicted 2 on behalf of Non-Indicted 2. In addition, even if Non-Indicted 2 obtained the victim's consent or ratification after the formation of the forgery of a private document, it does not affect the crime already established (see, e.g., Supreme Court Decisions 9Do202, May 14, 1999; 2001Do3959, Nov. 9, 2001; 2007Do2714, Jun. 28, 2007); and the court below's finding the defendant guilty of preparing a sales contract and a receipt on June 25, 2007.

In addition, according to the evidence duly examined by the court below, non-indicted 2, June 25, 2007,

In preparation for the contents of the self-sale contract as of June 12, 2007 and the contents of the self-sale contract as of June 25, 2007, the non-indicted 2 was unaware of the specific contents of the self-sale contract, especially the sale price and its payment time, and was unaware of whether the non-indicted 2 was a party to the above sale contract.

25. The intermediate payment of the purchase and sale contract was to be paid as the balance of the purchase and sale contract on June 12, 2007, and it is difficult for Nonindicted 2 to expect the Defendant to consent to receive the intermediate payment of the purchase and sale contract on June 25, 2007 in lieu of the intermediate payment of the purchase and sale contract. Therefore, it is also doubtful whether the Defendant was aware of the fact that the purchase and sale contract was concluded on June 25, 2007 and the details thereof were not known to Nonindicted 2, and whether Nonindicted 2 stated that the intermediate payment was to be paid to Nonindicted 3 by telephone, and even if there was such a fact, it is also doubtful whether Nonindicted 2 stated that the intermediate payment was paid to Nonindicted 3 by telephone.

25. Not only the last day of the time when he was unaware of the contents of the contract, but also the purport of the contract is that it is clear that the defendant (the purchaser on June 12, 2007 under the contract or the non-party 4, who was the buyer on June 12, 2007) concluded a new contract as a seller and received an intermediate payment as a party to the new contract (or the non-party 4), and that the defendant does not intend to conclude a contract on behalf of the non-party 2 on behalf of the non-party 2 and receive an intermediate payment on behalf of the non-party 2. In light of these circumstances, it is difficult to view that the non-party 2 received an intermediate payment on behalf of the non-indicted 2 and made a receipt in the name of the non-indicted 2, and therefore, it is reasonable to affirm the judgment of the court of first instance to find the defendant guilty of the preparation of qualification-based private documents and the facts charged of exercising that contract.

3. Fraud;

According to the judgment of the court below and evidence duly examined by the court below, it is just to determine that the court below did not have an intention or ability to transfer the ownership of the real estate of this case normally, based on the circumstances in its reasoning.

4. Violation of the National Land Planning and Utilization Act;

The application of the penal provisions of Articles 118(1) and 141 subparag. 6 of the former National Land Planning and Utilization Act (amended by Act No. 9442 of Feb. 6, 2009) is limited to "the party who intends to enter into a land transaction contract". On the other hand, the joint penal provisions of Article 143 of the same Act is limited to "the party who intends to enter into a land transaction contract" or "the party who commits an act falling under the penal provisions of Article 143 of the same Act" in order to secure effectiveness of the above penal provisions, and if such person commits an act in violation of the above penal provisions, the person who is subject to application is punished under the above joint penal provisions, at the same time, the penal provisions of the offender who is punished under the above joint penal provisions and the penal provisions for the benefit-sharing entity (refer to Supreme Court en banc Decision 95Do2870 of Jul. 15, 19, 2003Do3984 of Dec. 22, 2005).

However, according to the facts charged in this case and the facts acknowledged by the court below, the defendant is merely a party to enter into a sales contract on June 12, 2007 on behalf of the non-public prosecution and the non-public prosecution and on behalf of the non-public prosecution 4, and is not a "party to enter into a land transaction contract" under Article 118 (1) of the former National Land Planning and Utilization Act. Thus, the defendant cannot be punished directly for a violation of Article 118 (1) and Article 141 subparagraph 6 of the former National Land Planning and Utilization Act, and only is subject to Article 118 (1) and Article 141 subparagraph 6 of the former National Land Planning and Utilization Act.

Nevertheless, the court below did not apply Article 143 of the former National Land Planning and Utilization Act as to this part of the facts charged without applying Article 118(1) and Article 141 subparag. 6 of the same Act immediately. Thus, the court below erred by misapprehending the legal principles on the application of penal provisions of Articles 118(1) and 141 subparag. 6 of the former National Land Planning and Utilization Act or the joint penal provisions of Article 143 of the same Act, and it is obvious that such illegality affected the judgment, and thus, the court below which found the defendant guilty of this part of the facts charged cannot avoid reversal.

5. Conclusion

Therefore, among the judgment below on June 12, 2007, each of the above crimes was sentenced to a single punishment in relation to concurrent crimes under the former part of Article 37 of the Criminal Act with the remaining guilty portion and the crime was entirely reversed and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam

Justices Park Si-hwan

Jeju High Court Justice Ahn Dai-hee

Justices Shin Young-chul