Defendant 1 and one other

Defendants

Hack-making, studio (prosecution), and Yck-making (public trial)

Attorneys Yu-won et al.

Suwon District Court Decision 2012Gohap1236 decided January 10, 2013 (Consolidation) 2124 decided January 10, 2013

The judgment of the court below is reversed.

Defendant 2 shall be punished by a fine of KRW 1,000,000.

When Defendant 2 fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.

To order the provisional payment of an amount equivalent to the above fine against Defendant 2.

A sentence to Defendant 1 shall be suspended.

Of the facts charged against Defendant 2, the National Land Planning and Utilization Act is acquitted.

1. Summary of grounds for appeal;

A. Defendant 1

1) misunderstanding of facts and misapprehension of legal principles

Defendant 1, as indicated in the facts charged in the instant case, recognized the fact that he prepared an application for extension of the cancellation of permission for development activities in his name, regardless of Nonindicted 3 and 4’s intention, but this constitutes a justifiable act that does not violate the social rules, and thus constitutes a justifiable act that is not contrary to the interests of Nonindicted 3 and 4. Nevertheless, the lower court’s judgment convicting the Defendant, which

2) Unreasonable sentencing

The punishment of the lower court (2 million won of fine) is too unreasonable.

B. Defendant 2

(1) misunderstanding of facts

A) Forgery of private documents and the uttering of a falsified private document

At the time of the instant crime, Nonindicted 3 and Nonindicted 4 requested the revocation of permission, and the permission was revoked accordingly, and the restoration order was also anticipated, and Defendant 2 was forced to apply for the extension of restoration to the original state as a matter of course due to the emergency of the time, and Defendant 2 thought, as a matter of course, that Nonindicted 3 and Nonindicted 4 agreed to the restoration to the original state. In other words, even though the said Defendant did not have any intention to commit a crime under the foregoing provision, the lower court erred by misapprehending the fact that the said Defendant was guilty as to the forgery of private documents and the uttering of private investigation documents.

B) Violation of the National Land Planning and Utilization Act

The disposition of cancellation of the instant development permit and the disposition of reinstatement order shall be made to the father, non-indicted 1 of the Defendants. Defendant 2, on behalf of Non-indicted 1, who merely served as a certain part of the application for the development permit and development activities, cannot be deemed as a person subject to the disposition of permission for development activities. In addition, the above Defendant cannot be deemed as a successor of the order of cancellation of permission and restoration from the National Land Planning and Utilization Act. Nevertheless, the lower court which

2) Unreasonable sentencing

The punishment of the lower court (a fine of three million won) is too unreasonable.

2. Determination

A. Defendant 1

1) Judgment on misconception of facts and misapprehension of legal principles

According to each evidence duly adopted and examined by the court below, the defendants, the deceased non-indicted 1's heir prior to the crime of this case, and the non-indicted 3 and 4, which have already occurred a dispute over the division of inherited property in this court, such as claiming a partition trial. In light of the fact that the investigation agency consistently from the investigation agency to the trial, and the non-indicted 3 stated that he did not want to apply for the extension of the restoration to the original state, even though the application for the extension of the restoration to the original state was an act beneficial to the non-indicted 3 and 4, it is difficult to view that the act of sealing and sealing their names without their consent is an act that does not violate the social rules. Accordingly, the defendant 1's allegation of erroneous facts

2) Determination on the assertion of unreasonable sentencing

However, prior to the crime of this case, Nonindicted 3 expressed his intention that he would not want development activities, such as requesting the cancellation of permission for development activities at Osan. Thus, there was a circumstance that the Defendants, who had been mainly in charge of the work related to the permission of development, required an extension of the period for restoration to the original state. Nonindicted 3 and Nonindicted 4, and there was a circumstance that may be predicted that they would have consented to the request for extension of the period. In full view of all the sentencing conditions indicated in the records and arguments of this case, including Defendant 1’s age, character and behavior, occupation, criminal records, criminal records, circumstances after the crime of this case, and circumstances after the crime of this case, the punishment imposed by the court below (two million won of fine) is somewhat heavy. Accordingly, Defendant 1

B. Defendant 2

1) Judgment on the assertion of mistake of facts

A) Forgery of private documents and the uttering of a falsified private document

In full view of the circumstances mentioned in the above 2. A. 1, it is against the common sense that Defendant 2, at the time of committing the crime of this case, deemed that Nonindicted 3 and 4 entrusted the above Defendant with the authority to affix their seals on the application for extension of the restoration to the original state, and it does not change even if it was difficult for Defendant 2 to apply for the extension of the restoration to the original state as a matter of course due to the sudden reason for the extension of the restoration to the original state. Accordingly, the above Defendant’s assertion that Defendant 2 had no criminal intent to commit the crime of fabrication of private documents and the crime of perjury is rejected.

B) Violation of the National Land Planning and Utilization Act

(1) Summary of this part of the facts charged

The summary of this part of the facts charged is as follows: “Defendant 2 obtained permission for development activities from Osan-si on the name of Non-Indicted 1 (Death around February 201, 201), which is the Defendant’s attached, on or around December 1996, as to the size of the non-Indicted 1’s land (hereinafter omitted) 91 square meters, but the permission for development activities was revoked on or around October 201 because it did not undergo a completion inspection by May 31, 2005. The above Defendant received a notice from Osan-si to restore the said land to its original state on or around February 16, 2012 without justifiable grounds.”

(2) The judgment of the court below

The court below found the defendant guilty of this part of the facts charged by taking full account of the evidence of employment.

(3) Judgment of the court below

However, according to the statement by Non-Indicted 2 of the witness of the trial court, it can be acknowledged that the person who received documents, such as a certificate of personal seal impression, requests Non-Indicted 2 to change the name of permission for development of the instant real estate and received documents related to the instant real estate. According to the above circumstances, Defendant 2 cannot be viewed as the person who obtained permission for development as stated in the facts charged in the instant case, and it is insufficient to deem that Defendant 2 obtained the permission for development in the name of Non-Indicted 1, his father, Non-Indicted 1. Thus, although the facts charged in the instant case constitute the time when there is no proof of crime, the court below convicted Defendant 2 as to the violation of the National Land

2) Determination on the assertion of unreasonable sentencing

In full view of the circumstances mentioned in paragraph (a)(2) above, and the fact that there is no proof of a crime as to the violation of the National Land Planning and Utilization Act, and all the sentencing conditions shown in the records and arguments of this case, including Defendant 2’s age, character and conduct, occupation, criminal records, the circumstances of the instant crime, and the circumstances after the crime, the sentence (2 million won of a fine) sentenced by the court below is somewhat significant. Accordingly, Defendant 1’s allegation of unfair sentencing is with merit.

3. Conclusion

Therefore, since the defendants' appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the following decision is rendered again after pleading.

1. Forgery of private documents;

On November 29, 201, the Defendants stated in the application for the extension of the permission for development in the name of Nonindicted 3 and Nonindicted 4 for the extension of the restoration to the original state, stating, “The restoration of the original state would be completed by applying for a new permission, so the restoration of the original state will be extended, and the main time will be extended.” Then, the Defendants stated the names of Nonindicted 3 and Nonindicted 4, and affixed seals of Nonindicted 3 and Nonindicted 4, Nonindicted 4, which were newly kept in possession of in advance, with the seals of Nonindicted 3 and Nonindicted 4, while Nonindicted 1, who was put up at around 1996, was permitted to engage in development activities but did not develop.

Accordingly, the Defendants conspired with each other to forge the application for the extension of restoration to the original state, which is a private document on the rights and obligations of the above non-indicted 3 and non-indicted 4.

2. Uttering a falsified investigation document;

In collusion, the Defendants submitted to the public official in charge of the fact that one copy of the application for the cancellation of permission for development activities forged, such as the preceding paragraph, was genuinely prepared, at the City of Osan-si located in Osan-si, 201.

1. Defendant 2’s legal statement, Defendant 1’s partial statement

1. Legal statement of the witness in the original trial and the trial court of the non-indicted 3

1. Police suspect interrogation protocol against Defendant 2

1. The police statement of Nonindicted 3 (including the content certification of Nonindicted 3 on December 2, 2011)

1. Complaint;

1. Entry in and existing applications for extending the cancellation of permission for development activities;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 231 and 30 of the Criminal Act (abstinence of private documents), Articles 234, 231, and 30 of the Criminal Act (abstinence of private documents), the selection of fines, respectively.

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Code

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Code (Defendant 1: 50,000 won per day)

1. Order to make provisional payment (Defendant 2);

Article 334(1) of the Criminal Procedure Act

1. The type to be suspended (Defendant 1);

Fines 1 million won

1. Suspension of sentence (Defendant 1);

Article 59(1) of the Criminal Act (see, e.g., Supreme Court Decision 200Do1416, Apr. 1, 20

The summary of the violation of the National Land Planning and Utilization Act among the facts charged against Defendant 2 is the same as the above 2.b. 1 (b) (1). This constitutes a case where there is no proof of criminal facts as seen in the above 2.b. 1 (b) (3) and thus, a judgment of not guilty under the latter part of Article 325 of the Criminal Procedure Act.

Judges Yu Nam-ju (Presiding Judge)