Defendant

Both parties

Kim Jong-hwan

Attorney Kim Jin-chul

Daegu District Court Decision 2007Madan9 Decided April 17, 2007

All appeals by the defendant and the prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

(1) Meritorious legal principles (as to the violation of the check)

The court below determined that "the purpose of uttering" necessary for establishing the crime of forging a check includes "the purpose of simple display", but "the purpose of simple display" in this context refers to the case where a check is shown in order to indicate one's credit in external transactional relations, and it shall not be included in the case where a check is shown in order to identify the economic situation of the family, such as this case.

Nevertheless, the lower court found the Defendant guilty of the facts charged of this case, thereby adversely affecting the conclusion of the judgment.

(2) Unreasonable sentencing

In full view of the various circumstances such as the fact that the defendant has faithfully engaged in a public office life for a prescribed period of time, the fact that the defendant has lost his workplace due to the instant case, the fact that there is difficulty in living, and the fact that the defendant could be reinstated if he is sentenced to a fine, the punishment of two years of suspended execution and fine of three million won for a year sentenced by the court below is too unreasonable.

(b) Prosecutors;

(1) misunderstanding of facts (as to the exercise of forged securities)

In this case, Non-Indicted 1 stated that the police first set the amount of sexual traffic with the Defendant at KRW 1.50,000,000, which was issued by the Defendant, and that the Defendant received a cash check with KRW 50,000 and KRW 100,000,000, which was then reversed the statement that the Defendant received cash 150,000

However, Non-Indicted 1’s reversal statement is not reliable in light of the following circumstances, i.e., if Non-Indicted 1 received a letter of 100,000 won check in addition to the commercial sex acts amount, he carefully observed it, and grasped the authenticity thereof. Non-Indicted 1, without doubt, stated his name and contact details on the back of the check and used it, Non-Indicted 1, even though the unpaid amount of fees for mobile phone use was equivalent to KRW 30,000,000,000, and Non-Indicted 1 did not explain the circumstances leading up to the reversal of the statement, and Non-Indicted 1 did not have any reasonable explanation on the circumstances leading up to the reversal of the statement. The first statement is more reliable.

Therefore, the court below rejected the credibility of Non-Indicted 1's initial police statement on this part and found it not guilty on the ground that it constitutes a case where there is no proof of a crime, which affected the conclusion of the judgment.

(2) Unreasonable sentencing

In full view of various circumstances, such as the forgery of the check in front and rear so as to be consistent, and the fact that the motive for the check cannot be easily understood, the punishment sentenced by the court below is too uneasible and unreasonable.

2. Determination

A. As to the assertion of misapprehension of legal principle

In order to establish a counterfeited check under Article 5 of the Illegal Check Control Act, "the purpose of uttering" is "the purpose of uttering."

The purpose of the exercise is not necessarily to refer to the purpose of use in accordance with the original usage of securities, so it does not need to be put in distribution, and it is recognized that the purpose of exercise is to simply display for credit or submit it as evidence in a lawsuit.

In light of the above legal principles, it is reasonable to view that the purpose of exercise is not necessarily required to be recognized as an external transactional relationship, and even if the check was forged for the purpose of showing it to identify it as the defendant's assertion, it is reasonable to view that the crime of forging check under Article 5 of the Illegal Check Control Act is intended to be established.

Therefore, the judgment of the court below which found the defendant guilty of this part of the facts charged is just and it is not erroneous in the misapprehension of legal principles as alleged by the defendant, and this part of the defendant's assertion is without merit.

B. As to the assertion of mistake of fact

The defendant asserts that in the process of inserting 1,50,000 won in cash as the price for sexual traffic against Nonindicted Party 1 from the investigative agency to the trial of the party, the instant forged check was delivered together with the actual frequency.

However, as evidence consistent with the facts charged in this case, the court below stated the police statement as evidence against the non-indicted 1. However, the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, i.e., when the non-indicted 1 was found to be a forged check and received an envelope containing 100,000 won and cash 50,000 won after the sexual intercourse with the defendant when he was investigated by the police, he was asked to receive 1,50,000 won in return for sexual intercourse with the defendant in the course of investigating the suspect due to the suspect's suspicion of sexual intercourse. However, it is difficult for the prosecutor to consistently state that the non-indicted 1's statement was made in consideration of the following circumstances, and it is hard to recognize that the defendant's statement was insufficient to acknowledge the defendant's statement because the non-indicted 1's statement was made in consideration of the fact that it was reversed, but it does not appear to have any other reasons to recognize the defendant's statement in this case.

Next, examining whether the Defendant intentionally offered the instant check to Nonindicted Party 2 separate from KRW 1.50,00 in cash, Nonindicted Party 1’s protocol of interrogation of Nonindicted Party 1, who seems consistent with this, bears the testimony to the effect that Nonindicted Party 1 denies the actual authenticity in the court of original trial, and thus, cannot be admitted as evidence (it is difficult to believe that Nonindicted Party 1’s statement that, even if not, the Defendant knew, he would have known that he would have known that he would have made Nonindicted Party 1, or that he would have made Nonindicted Party 1 use it, is the prosecution of Nonindicted Party 1, and it is difficult to believe it as it is), and there is no other evidence to deem that the Defendant intentionally offered the instant check to Nonindicted Party 2.

Therefore, since this part of the facts charged constitutes a case where there is no proof of a crime, the judgment of the court below which acquitted the defendant is just and it cannot be said that there is an error of mistake of facts or incomplete hearing as pointed out by the prosecutor, and therefore, this part

C. As to the assertion of unreasonable sentencing

As to the assertion on unreasonable sentencing, in full view of the following circumstances: (a) the health team; (b) the Defendant copied the instant check in front of, and back to, the Defendant; (c) the Defendant asserted that he copied the instant check to identify the economic situation of the house; (d) the Defendant did not actually show it to his wife; (c) the Defendant’s reproduction of the instant check for this reason is difficult to obtain a prior notice; (d) the Defendant’s assertion that it is difficult to provide family convenience; (e) the Defendant provided sexual traffic with KRW 150,00 as an employee of the Railroad; (c) the Defendant has been working for a period of up to two hundred and fifty years; (d) the Defendant had no other power except for the previous offense of fine; (e) the Defendant was dismissed due to the instant case; and (e) other favorable circumstances, such as the fact that the family situation is difficult due to the dismissal; and and (e) other various other various other circumstances on the sentencing

3. Conclusion

Therefore, the appeal by the defendant and the prosecutor is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since there is no reason for the appeal by the defendant and the prosecutor.

Judges Park Jong-dae (Presiding Judge)