Defendant 1 and one other

Prosecutor

Private Armed Forces

Attorney Im Im Im Han-woo

Daegu District Court Decision 2006Ra1100, 2006Ma1192 decided July 7, 2006

All of the appeals by prosecutors are dismissed.

1. Summary of grounds for appeal;

In full view of the evidence submitted by the prosecutor, it is reasonable to view that the deceased non-indicted 2 transferred the subordinated claim equivalent to KRW 100 million (hereinafter “instant claim”) that was deposited in the name of Defendant 1, his wife, to the deceased non-indicted 1, who was the senior non-indicted 2, in return for the nursing of himself in the past before the death of the deceased non-indicted 2. The Defendants’ change in the position of the above non-indicted 1 is difficult to obtain in light of the empirical rule.

Even if the claim of this case is merely a nominal trust with the above non-indicted 1, the Defendants’ act of preparing and exercising the claim for registration of transfer of claim in its name without the consent of the above non-indicted 1, the nominal owner, constitutes the crime of forging private documents and uttering of the above investigation documents.

Nevertheless, the court below presumed that the claim of this case was trusted to the above non-indicted 1, and held Defendant 1, the inheritor of the above non-indicted 2, the right to use the above non-indicted 1's name in relation to the disposal of the claim of this case, as the trustee, not guilty of each of the facts charged against the defendants. Thus, the court below erred in the misapprehension of facts against the rules of evidence, which affected the conclusion of the judgment.

2. Summary of the facts charged in this case

On August 30, 2004, the Defendants conspired to enter “Non-Indicted 1” and “(resident registration number omitted)” in the name column of the transferor of the claim transfer registration form in the name of the bank (name omitted) where Defendant 2 works at the Dong-gu Office (name omitted) Dong-gu, Daegu (name omitted), and submitted to Non-Indicted 3, who is an employee of the said branch, the above date, time, place, and place, a copy of the claim transfer registration form in his name, which is a private document on the rights and obligations bearing seals in the name of Non-Indicted 1, which is a private document pertaining to the rights and obligations, and submitted the forged claim transfer registration form to the Non-Indicted 3, who is an employee of the said branch.

3. Defendants’ defenses and Nonindicted 1’s statements

A. The Defendants asserted that the instant claim, which Nonindicted Party 2 deposited in Defendant 1’s name, had been leased only in the name of Nonindicted Party 1 due to tax issues, from the investigative agency to the trial court, and denied each of the instant charges.

B. Meanwhile, around January 1993, Nonindicted Party 1 sent the above Nonindicted Party 2 to himself for one year and six months, and the above Nonindicted Party 2 asserts that he/she transferred the instant claim to himself/herself by its answer.

4. Issues and determination

A. Key issue

The key issue of the instant case is: (a) whether the above non-indicted 2 donated the instant claim to the above non-indicted 1 or merely trusted the instant claim to the above non-indicted 1 (the defendant and the above non-indicted 1’s statements are true or true); and (b) even if it is a title trust, whether the defendants have the authority to prepare the written request for registration of transfer of claim in the name without the above non-indicted 1’s consent.

B. Determination

(1) First of all, considering the following circumstances acknowledged by the record as to the above issue ①, that is, even after the above change in the name of the non-indicted 1, the above non-indicted 2 directly managed the above claim without delivering it to the above non-indicted 1, the above non-indicted 1, who was in the name of the non-indicted 5, and the above non-indicted 1, who was in the name of the non-indicted 2's possession of the above non-indicted 2 at Dongcheon-dong office around 193, the above non-indicted 2, who was a donation of the claim of this case. However, the court below's decision and the non-indicted 4 did not respond to the specific name of the above non-indicted 2's claim for the non-indicted 1, who was in the name of the non-indicted 1, the non-indicted 5, who was in the above non-indicted 1's name and the non-indicted 1, who was in the above non-indicted 2's name, stated that the above non-indicted 1 and the above non-indicted 2, were suspected.

(2) Next, it is reasonable to see that the above issues (2) were examined as to the above issues (the trustee, and the above non-indicted 1) comprehensively allowed the above non-indicted 2, the truster, to use his name in the exercise of authority including the disposition of the claim in this case. Thus, Defendant 1, the heir of the above non-indicted 2, also has the authority to use the above non-indicted 1 in disposing of the claim in this case.

C. Sub-decision

Therefore, the above non-indicted 1's claim for the registration of the transfer of claim made by the defendant 1 and her woman under the direction of the defendant 2 is a document prepared by the person with legitimate authority. Thus, each of the facts charged of this case premised on the fact that the defendants did not have the authority to prepare the above claim for the registration of the transfer of claim constitutes a case where there is no proof of criminal facts, and thus, the judgment of the court below which makes a conclusion is just and there is no reason for the prosecutor's appeal.

5. Conclusion

Therefore, all appeals against the Defendants by the prosecutor under Article 364(4) of the Criminal Procedure Act are dismissed. It is so decided as per Disposition.

Justices Kim Tae-tae (Presiding Justice)

Judges Kim Il-il et al. unable to sign and seal by business trip