[1] In a case where a document was delegated by others, but the delegated authority was obtained, and the contents were stated, whether the crime of forging a private document was committed (affirmative)

[2] The case reversing the judgment of the court below which acquitted the act of forging private documents and exercising the same in case where the actual owner, who was engaged in all business of selling in lots under the comprehensive consent of the owner of the nominal commercial building, prepares and uses the sales contract and deposit slip of the commercial building which is not actually sold

[1] The crime of forging a private document is established by a person without the authority to prepare the document using the name of another person. The act of forging a private document constitutes a crime of forging a private document, in violation of the intent of the nominal owner, by stating the delegated authority in early and in stating the content thereof, even if delegated by another person.

[2] The case reversing the judgment of the court below which acquitted the act of forging private document and uttering on the ground that, in case where the actual owner, who had been engaged in all the business of selling in lots under the comprehensive consent of the owner of the nominal commercial building, prepared the sales contract and deposit slip in the name of the owner of the nominal commercial building and acquired money by using the sales contract and deposit slip in the form of loan by using the deposit slip, on the ground that the commercial building did not actually sell in lots and it cannot be deemed that the act of preparing false document with such fact constitutes the sales business delegated comprehensively, on the ground that the preparation and exercise of the above contents can not be deemed as belonging to the sales business delegated comprehensively, on the ground that it is included within the authority delegated comprehensively.

[1] Article 231 of the Criminal Act / [2] Article 231 of the Criminal Act

[1] Supreme Court Decision 83Do154 delivered on April 12, 1983 (Gong1983, 854) Supreme Court Decision 83Do2408 delivered on June 12, 1984 (Gong1984, 1237) Supreme Court Decision 92Do2047 delivered on December 22, 1992 (Gong193, 651)

Defendant 1 and two others

Prosecutor

Seoul High Court Decision 96No1735 delivered on November 8, 1996

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. Of the facts charged of this case, the summary of the use of forged private documents and the above investigation document was offered jointly for the purpose of exercising the right to deposit, Defendant 2 and Defendant 1, at the office of Jinyang Faul located in Jung-gu, Seoul on April 1995, Defendant 2, the head of the general affairs office of the non-indicted 3, 97, and April 4, 200 won for the above commercial building on the paper of the sale contract, and the above 118,80,80,000 won for the above 10,000 won, and the above 10,0000,000 won for the above 30,000 won for the above 10,000 won for the above 40,000 won for the purpose of the sale contract, and the above 10,000 won for the above 30,000 won for the purpose of using the above 10,000 won for the above 4,004, respectively.

According to the reasoning of the judgment below, the court below determined that the court of first instance, as the actual owner of the above non-indicted 3 corporation in total length, has conducted all business operations with the comprehensive consent of its representative director, who is the above non-indicted 3, and has prepared the sales contract, etc., on the pretext of the records, the court below affirmed the records. Furthermore, according to the above acknowledged facts, the preparation of a false sales contract and a deposit slip for the purpose of raising the funds of the above company in the above defendant's length is deemed to be included within the comprehensive authority of the above defendant, so the preparation of the above documents in the above non-indicted 3 is also deemed to constitute the above non-indicted 3's implied consent, and even after considering all the evidence submitted by the prosecutor, this part of the facts charged cannot be recognized, and there is no other evidence to acknowledge it, and the above facts charged against the defendants are not guilty, and the prosecutor'

2. However, the crime of forging a private document is established by a person without the authority to make a document using the name of another person, and the act of preparing a private document against the intent of the nominal owner by entering the delegated authority in the initial manner constitutes a crime of forging a private document, which deviates from the authority to make a document (see, e.g., Supreme Court Decisions 83Do154, Apr. 12, 1983; 83Do2408, Jun. 12, 1984; 92Do2047, Dec. 22, 1992).

Therefore, as recognized by the first instance judgment maintained by the court below, even if the defendant was the actual owner of the above non-indicted corporation, who is the nominal representative director of the above company, and the sales contract was prepared with all business operations with the comprehensive consent of the non-indicted 3, who is the representative director of the above company, as stated in the above facts in the above facts charged, the criminal acts such as preparing a false document with the contents of the above non-indicted 3, which is the fact that the above non-indicted 3 was not actually sold and the sales price was not paid, cannot be deemed as belonging to the business of the above non-indicted 3, which was comprehensively delegated by the above non-indicted 3. Thus, the above facts acknowledged by the court below alone cannot be concluded that the preparation of each of the above documents in

In addition to the fact that the above non-indicted 3 comprehensively delegated the preparation of a document in the name of himself in relation to the business of the above non-indicted 3 to the defendant Yang-ro, the court below should further deliberate on the fact that the commercial building of the above Jyang-ra was not sold in lots and that it was delegated to the preparation of a false document in the name of the above non-indicted 3 even though the sale price was not paid, and it cannot be concluded that the above defendant's preparation of each of the above documents in the above non-indicted 3 was an act within the authority delegated by the above non-indicted 3. However, the court below found the above facts charged on the ground that the above facts charged against the defendants constitute a case where there is no proof of crime. The court below erred by misapprehending the legal principles on the crime of forging private document, failing to exhaust all necessary deliberation, or by violating the rules of evidence, which affected the conclusion of the judgment.

3. Therefore, the part of the judgment of the court below which acquitted the Defendants as to the charge of forging a private document and uttering of a private document shall not be reversed. As long as it is interpreted to the effect that the not guilty part and the part concerning the remaining facts charged against the Defendants which the court below found them guilty were prosecuted as concurrent crimes under the former part of Article 37 of the Criminal Act, and that the prosecutor appealed against the whole of the judgment of the court below which dismissed the prosecutor's appeal, the above part

Therefore, all of the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-hun (Presiding Justice)