Defendant

Prosecutor

Park Jae-sung

Attorney Park Jong-young in charge of the law firm tower

Suwon District Court Decision 2005Ma822 decided Oct. 6, 2005

The part of the judgment below on the attempted fraud shall be reversed.

The charge of attempted fraud among the facts charged in the instant case is acquitted.

The prosecutor's appeal on the remainder of the judgment below with the exception of the above reversal portion is all dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

Of the facts charged in the instant case, the lower court acquitted the Defendant on the charge of aiding and abetting private documents and attempted fraud as follows, by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

(1) As to the aiding and abetting private documents

In light of the following: (a) the Defendant forged the loan certificate; (b) delivered the forged loan certificate to Nonindicted 2 as his personal debt repayment for the Defendant, rather than the company’s debt; (c) the Defendant’s personal loan certificate was issued to him; and (d) it is difficult to believe the Defendant’s assertion that he again prepared the loan certificate stating the interest portion as necessary for accounting settlement by forging the loan certificate; and (d) the relationship between Nonindicted 1 and the Defendant at the time, and the process of preparing the actual loan certificate, etc., it is reasonable to deem the Defendant to have forged the loan certificate by means of filing a lawsuit by transferring the false bond; (c) therefore, the time when the loan certificate was forged shall be deemed to have been deemed to have been forged

(2) As to the attempted fraud

In light of the fact that the defendant, knowing that he was false credit, transferred it to Nonindicted 2, who was unaware of the fact that he was the defendant, and thereafter asked the attorney office to file a lawsuit with Nonindicted 2, and that Nonindicted 2 did not demand direct loan payments to Nonindicted 1, and that Nonindicted 2 did not demand direct loan payments to Nonindicted 1, that Nonindicted 2 did not allow Nonindicted 2 to file a lawsuit, but did not allow Nonindicted 2 to file a lawsuit, that the defendant agreed to pay personal debt payments to Nonindicted 2 when the defendant acquired profits from the lawsuit by transferring the above false credit, and that the defendant is bound to bring a lawsuit against Nonindicted 2, thereby allowing the defendant to bring a lawsuit. The court below erred by misapprehending the above points.

B. Unreasonable sentencing

In light of the fact that Nonindicted 1 committed the instant crime in spite of the fact that Nonindicted 1 reported continuing damage from the company that he works as representative director, and that he did not reflect on his criminal act, the sentence imposed by the lower court against the Defendant is too uneasible and unfair.

2. Judgment on the forgery of private documents

A. Summary of the facts charged

The Defendant was the representative director of Nonindicted Co., Ltd. (hereinafter “Nonindicted Co., Ltd.”). Around September 1, 2003, at the office of the Nonindicted Co., Ltd. located in Sungnam-si (Songnam-dong parcel number omitted), the Defendant, without authority, used the computer for the purpose of exercising the right, used the computer to pay interest in two copies per month. The amount of the above amount is fixed and the interest is to be paid in two copies per month. The amount of the security: (a) the amount of the equity (7.05 square) of Nonindicted Co. 1 on the first floor of Nice 1, 152: 25,307,50 won as security: (b) on August 20, 198, Nonindicted Co. 198, on which the borrower was made to the Defendant’s representative director of the Nonindicted Co., Ltd.; (c) and (d) in advance, sealed the above Nonindicted Co. 1’s seal affixed on his name and forged one copy of the loan in the name of the private document.

B. The judgment of the court below

The court below held that the crime of forging private document constitutes a crime punishable by imprisonment with prison labor for not more than five years or by a fine not exceeding 10 million won under Article 231 of the Criminal Act, and that the statute of limitations is five years under Article 250 of the Criminal Procedure Act, Article 50 of the Criminal Act, and Article 249 (1) 4 of the Criminal Procedure Act. If the loan certificate of this case was prepared as the defendant's statement on September 1, 1998, the public prosecution of this case was filed at the time five years have passed after the completion of the crime and the statute of limitations has already expired, based on all evidence submitted by the prosecutor, it is not sufficient to acknowledge that the time when the loan certificate of this case was prepared was completed was around September 1, 2003, which was specified in the facts charged. Rather, the court below held that the defendant was not guilty on the ground that the latter part of Article 35 of the Criminal Procedure Act was written on the ground that the document of this case was written on September 1, 2003.

C. Judgment of the court below

Examining the reasoning of the judgment below in comparison with records, it cannot be deemed that there was an error of law that affected the conclusion of the judgment by misunderstanding the facts in violation of the rules of evidence, and there is no reason to hold the prosecutor's appeal on this part of the judgment of the court below (it is difficult to conclude that there was an error in the judgment of the court below in the determination of the court below solely on the following grounds: although there was a witness's each legal statement as to the evidence examination additionally made in the trial, the contents of Nonindicted 4's statement were forged at any time, and the contents of the statement made by Nonindicted 2 were forged.

3. Judgment on the attempted part of fraud

A. Ex officio determination

The prosecutor applied for amendments to indictment with the content as stated below B. In this regard, the subject of the trial is changed and the part concerning attempted fraud in the original judgment, which is the premise of prosecution, cannot be maintained any further.

Therefore, pursuant to Article 364(2) and (6) of the Criminal Procedure Act, the part of the judgment of the court below regarding attempted fraud shall be reversed, and the following judgment shall be rendered through pleadings.

B. Summary of the facts charged

The defendant was the representative director of the non-indicted corporation, and around September 1, 2003, at the office of the defendant located in the branch office of Sungnam-si (hereinafter omitted), the non-indicted company did not have a claim to transfer 20 million won since it did not lend 20 million won to the non-indicted 1, but the defendant paid 35 million won to the non-indicted 2 as a repayment of the borrowed debt which the defendant personally assumed against the non-indicted 2, and between the above non-indicted 2 and the above non-indicted 2, the transferee of the bonds. The non-indicted 2, the transferee of the bonds, transferred all of the borrowed loan claims held against the non-indicted 1 (victim) and the transfer amount to the non-indicted 2,5 million won of the principal, the transfer amount to the non-indicted 1, and the transfer amount to the above non-indicted 2,000 won with the above loan claim to the above non-indicted 2, as shown in the facts charged regarding the violation of the private document.

On or before December 12, 2003, the Suwon District Court rendered a lawsuit for the claim for acquisition of money (the above court 2003Da32208) against the victim based on the aforementioned fraudulent claim that he had the above non-indicted 2, who is aware of the fact, obtained the above non-indicted 2 from the defendant on the basis of the above fraudulent claim that "the defendant 1 would pay the amount equivalent to the half of the month from September 1, 2003 and from September 1, 2003 to the date of full payment," and submitted the above forged loan certificate as evidentiary material. The above non-indicted 2 tried to obtain property benefits from the victim by ordering the above court to render a favorable judgment, but the victim responded to the above non-indicted 2, and the above non-indicted 2 did not receive the withdrawal from the lawsuit on May 7, 2004.

C. Determination

The purpose of the litigation fraud is to acquire the other party's property or property interest by deceiving the court and obtaining a favorable judgment in favor of the court. The defendant's principal purpose is to enable the above non-indicted 2 to file a loan lawsuit against the victim on behalf of the defendant, and if the defendant transferred the claim in this case to the above non-indicted 2 for the purpose of repaying the previous obligation to the non-indicted 2, as shown in the above facts charged, the defendant transferred the above non-indicted 2's loan claim in this case to the above non-indicted 2, and the above non-indicted 2 acquired the claim in this case's loan certificate to collect the existing loan claim against the defendant, barring any special circumstance, the above non-indicted 2 tried to obtain the above loan claim for his own interest rather than by calculating the defendant's own interest, and it cannot be deemed that it is nothing more than that the defendant's statement in this court, the prosecutor's protocol against the defendant (including the non-indicted 2, the non-indicted 4 and the non-indicted 2's statement in this case is not sufficient to recognize the defendant's litigation procedure.

4. Determination on the issue of unfair sentencing

In light of various circumstances, including the defendant's age, character, character, intelligence and environment, motive, means and consequence of the crime, circumstances after the crime, etc., the sentence imposed by the court below is appropriate, and it cannot be deemed unfair because it is too unreasonable, and therefore, the appeal of unfair sentencing is without merit. Thus, the appeal of unfair sentencing is without merit.

5. Conclusion

Therefore, the charge of attempted fraud among the facts charged in this case constitutes a case where there is no proof of crime, and thus, is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act. The prosecutor's appeal on the remaining part of the judgment below is dismissed. It is so decided as per Disposition

Justices Kim Tae-Gyeong (Presiding Justice)