[1] Where an application for registration of ownership transfer and registration of establishment of a neighboring mortgage is received at the same time, whether the certified copy of the register issued by the registry officer with only the registration of ownership transfer is a false official document (affirmative)

[2] Probative value of the verification protocol prepared by the recording tape or the court after hearing the recording content and confirming the contents of the conversation

[1] A false public document is a public document prepared by a public official who has the authority to prepare a document, stating the fact that its content is false and entered contrary to the truth. According to Articles 53(1), 54, and Article 13 of the Registration Rules effective from January 1, 1994, where an application for registration of ownership transfer and establishment of a neighboring mortgage is filed at the same time, and the issuance of a certified copy is filed, the registration official shall complete the registration of ownership transfer and establishment of a neighboring mortgage and deliver a certified copy accordingly, although the registration official completed the registration of ownership transfer and the establishment of a neighboring mortgage, if he/she issued a certified copy without entering the registration of ownership transfer and the establishment of a neighboring mortgage without entering the registration of ownership transfer, the certified copy constitutes a false public document, even if the entry of the certified copy is identical to the entry of the register, and its contents are not true by intentionally omitting some of the matters to be entered in the application already received.

[2] Where the contents of verification conducted by the court with respect to the recording tape are the same as those recorded in the recording tape, evidence is still the same as those recorded in the recording tape. Thus, the contents of recording tape or the contents of verification protocol are still different from those recorded in the recording tape. Thus, it cannot be admitted as evidence of guilt unless they are provided in Articles 311 through 315 of the Criminal Procedure Act because they are different from those recorded in the statement in place of the statement at a preparatory hearing or during a public trial.

[1] Article 227 of the former Criminal Act (amended by Act No. 5057 of Dec. 29, 1995); Articles 53(1) and 54 of the Registration of Real Estate Act / [2] Article 12 subparag. 1 of the Protection of Communications Secrets Act; Articles 310-2, 311, and 315 of the Criminal Procedure Act

[1] Supreme Court Decision 73Do1854 delivered on January 29, 1974 (Gong1974, 7764) Supreme Court Decision 95Do1395 delivered on November 10, 1995 (Gong1995Ha, 3955) Supreme Court Decision 96Do54 delivered on May 14, 1996 (Gong196Ha, 1963) / [92Do682 delivered on June 23, 1992]

Defendant

Defendant and Prosecutor

Attorney Kim Kim-ju

Seoul High Court Decision 95No2561 delivered on June 13, 1996

The prosecutor's appeal is dismissed. The part of the judgment below's conviction is reversed, and this part of the case is remanded to Seoul High Court.

1. We examine the prosecutor’s grounds of appeal.

According to the reasoning of the judgment of the court below, the court below affirmed the judgment of the court of the first instance that acquitted each of the above facts charged on the ground that there is no evidence to acknowledge that each of the above facts charged of offering of a bribe was offered to the same non-indicted 2, 3, and 4, but there is no evidence to support that each of the above facts charged of offering of a bribe was conducted through the public offering with the defendant. As to the facts charged of embezzlement, there is no evidence to support that there was a custody consignment relationship between the non-indicted 5 corporation or the above non-indicted 1 and the defendant on the grounds that the defendant was withdrawn from the deposit account of the non-indicted 5 corporation, and then there is no evidence to support that there was a custody consignment relationship between the non-indicted 5 corporation and the above non-indicted 1 and the defendant, and the above measures of the court below are just,

2. We examine the grounds of appeal by defense counsel (if the supplemental appellate brief received after the lapse of the period, to the extent of supplement).

A. As to the uttering of a false official document

False public document refers to an official document prepared by a public official having the authority to prepare a document, recognizing the fact that its content is false (see, e.g., Supreme Court Decisions 96Do554, May 14, 1996; 95Do1395, Nov. 10, 1995). According to Article 53(1) of the Registration of Real Estate Act, if a public official files an application for registration, the purpose of entry in the receipt book, the name or title of the applicant, the date of receipt, and the serial number of receipt shall be stated in the application form: Provided, That if several applications for registration are filed simultaneously, the same serial number shall be stated; according to Article 54 of the same Act, if the public official completes the registration of establishment and the public official files an application for registration to complete the registration of establishment of a new copy of the registry as stated in the application form, it is evident that the public official will not complete the registration of establishment of a new copy of the registry and deliver a certified copy of the register as stated in the application form of registration.

If two or more persons agree to jointly process a crime and realize a crime, such a combination of intent is established in order or impliedly, a public conspiracy relationship is established in the public conspiracy even if the combination is made, and even if those persons do not participate directly in the act of execution have been made, they are liable for the act of accomplices as joint principal offenders (see, e.g., Supreme Court Decisions 95Do1269, Sept. 5, 1995; 85Do2728, Aug. 19, 196). Examining the evidence admitted by the first instance court as cited by the lower judgment and the evidence additionally admitted by the lower court (excluding the contents of the recording tape which is judged as inadmissible by the lower court and the statement of the first instance court’s inspection of evidence as above) by comparing with the records, it is acceptable for the lower court to have recognized that the Defendant used the false copy of the register as a joint principal offender. As such, there is no violation of the rules of evidence or any reason for lack of reasons for omission.

B. As to the violation of the former Mutual Savings and Finance Company Act

The occupational breach of trust by an officer of the mutual savings and finance company under Article 39 (1) 2 of the former Mutual Savings and Finance Company Act (amended by Act No. 4867 of Jan. 5, 1995) is a dangerous crime established when the execution of property rights is likely to be impossible to the mutual savings and finance company or when the risk of damage is created. Therefore, as long as Nonindicted 8, the representative director of Nonindicted 7 Mutual Savings and Finance Company, who is Nonindicted 8, did not receive any balance in violation of the resolution of the board of directors, and cancelled the registration of establishment of a collateral in the name of Nonindicted 7 Mutual Savings and Finance Company in the name of the Seocho-gu Seoul Metropolitan City, Seocho-gu 10:480 square meters and its ground building in the name of Nonindicted 7 Mutual Savings and Finance Company, the above crime is established regardless of the completion of the registration of establishment of a collateral in the name of Nonindicted 7 Mutual Savings and Finance Company in the name of 28 to 165 square meters and its ground building, the judgment of the court below is justified and there is no merit.

In addition, if the evidence admitted by the judgment of the court of first instance and the evidence additionally admitted by the judgment of the court of first instance (excluding, however, the recording of the recording tape, which is judged as inadmissible in the subsequent case, and the statement of the verification protocol of the court of first instance, which is judged as inadmissible), are compared with the records and reviewed, the decision of the court below that recognized the defendant as publicly recruited with the non-indicted 8 is acceptable, and there is no violation of the rules of evidence

C. As to the violation of the Outdoor Advertisements, etc. Control Act

In this regard, the part concerning the defendant's statement among the testimony of Kim J-ho, employed by the court below, constitutes the hearsay statement under Article 316 (1) of the Criminal Procedure Act. However, according to the records, the defendant requested Kim J-ho, who is the head of the Gu, to issue permission to install advertisements on the rooftop of the labor welfare construction building so that the non-indicted 5 corporation can be installed, and in order to explain the relation between the defendant and the non-indicted 5 corporation, "the facts are the non-indicted 5 corporation's investment and management." Thus, the court below acknowledged that the defendant's statement of Kim J-ho was made as evidence in a situation where the defendant's statement was particularly reliable, and there is no error of law by misunderstanding the legal principles concerning hearsay evidence under Article 316 (1) of the Criminal Procedure Act.

Meanwhile, the result of wiretapping of Defendant’s office telephones submitted as evidence, and the court of first instance conducted verification of the recording tape, and the court of first instance adopted part of the recording tape as evidence, and the court of first instance adopted as evidence the records of the first instance court’s examination of the recording tape as evidence. However, since the contents of verification conducted by the court of first instance with respect to the recording tape are the same as those recorded in the recording book, it still does not change the contents of conversations recorded in the recording tape. The contents of the recording tape as well as the contents of verification of the recording tape cannot be viewed as evidence unless they are provided for in Articles 311 through 315 of the Criminal Procedure Act because they do not differ from documents recorded in the statement at a preparatory hearing or during a public trial (see Supreme Court Decision 92Do682, Jun. 23, 1992).

However, except for the conversation recorded in the above recording tape, if the evidence of the first instance court cited by the judgment of the court below and the evidence additionally employed by the court below are reviewed by comparing it with the records, it can be recognized that the defendant continued to engage in an advertisement even after the period of permission expires in collusion with the non-indicted 1. Thus, the above illegality of the court below does not affect the conclusion of the judgment, and there is no reason to discuss

3. It shall be deemed ex officio.

Finally, the court below, ex officio, applied Articles 229, 227, and 30 of the Criminal Act to the crime of uttering of false official document as stated in the judgment of the court of first instance, and punished the defendant. However, Article 227 of the Criminal Act was amended by Act No. 5057 on December 29, 1995. Article 1 of the Addenda provides that the amended Act shall enter into force on July 1, 1996. The statutory punishment of Article 227 of the Criminal Act is revised by "a imprisonment of less than 10 years or a fine of less than 20 million won" from "a imprisonment of less than 10 years or a fine of less than 20 million won". Since Article 229 of the Criminal Act before and after the amendment provides that the crime of uttering of false official document should be punished by Article 227 of the Criminal Act, the court below found the defendant guilty of the above crime of violation of Article 383 of the Criminal Act and the entire crime of uttering of false document as a concurrent act.

4. Conclusion

Therefore, the prosecutor's appeal is dismissed, and the part of the judgment of the court below guilty is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)