[1] Where a trustee denies the title trust and asserts that the trust property is his/her own ownership, whether it is permissible for the truster to use the name of the trustee in relation to the disposal of the property (negative)

[2] The case holding that where a trustee asserts that he/she received a trust from his/her truster and did not receive a title trust, an act of his/her heir preparing and exercising a claim for registration of transfer of claim in his/her name without the trustee's consent constitutes forgery of a private document or an act of uttering of a private document

[1] In a case where an asset is held in title trust with no burden imposed on the truster, it is reasonable to deem that the trustee comprehensively permitted the disposal of the asset and the exercise of other authority to the truster, barring special circumstances. Therefore, even if the truster did not obtain an individual consent from the trustee when preparing documents necessary for the disposal of the trust property in the name of the trustee, the crime of forging and uttering private documents is not established. However, in a case where the trustee denies the title trust and claims that the trust property is owned by the trustee, etc., and there is a dispute over the ownership of the trust property between the truster and the truster, it cannot be deemed that the truster is permitted to use the trustee’s name in relation to the disposal

[2] The case holding that where a trustee asserts that he/she received a trust from his/her truster and did not receive a title trust, an act of his/her heir preparing and exercising a claim for registration of transfer of claim in his/her name without the trustee's consent constitutes the crime of forging a private document or uttering a private document

[1] Articles 231 and 234 of the Criminal Act, Article 103 (title trust) of the Civil Act / [2] Articles 231 and 234 of the Criminal Act, Article 103 (title trust) of the Civil Act

[1] Supreme Court Decision 83Do1213 decided Oct. 25, 1983 (1983, 1781)

Defendant 1 and one other

Prosecutor

Attorney Im Im Im Han-woo

Daegu District Court Decision 2006No2227 Decided December 7, 2006

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined.

1. Where an asset is held in title by a trustee without any burden on the truster, it is reasonable to deem that the trustee comprehensively permitted the disposal of the asset and the use of its name to the truster, barring special circumstances. Thus, in preparing documents necessary for the disposal of the trust asset in the name of the trustee, even if the truster did not obtain an individual consent from the trustee, the crime of forging and uttering private documents is not established (see Supreme Court Decision 83Do1213, Oct. 25, 1983, etc.). However, in a case where the trustee denies the title trust and the trustee claims that the trust property is owned by the trustee, etc., if there is a dispute over the ownership of the trust property between the truster and the trustee, the truster is no longer permitted to use the name of the trustee in relation to the disposal, etc. of the asset.

2. However, according to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance which acquitted Defendant 1, who is the heir of Nonindicted 2, also has the right to use the name of Nonindicted 1 in disposing of the instant claim, since the Defendants conspired to prepare a written claim for registration of transfer of claim in the name of Nonindicted 1 and forged it, and exercised it, and Nonindicted 2 held the title trust with Nonindicted 1, and Nonindicted 1, in the process of title trust, he comprehensively permitted Nonindicted 2 to use his title in disposing of the instant claim and exercise his authority. Thus, the court below affirmed the judgment of the court of first instance on the ground that the aforementioned facts charged constitute a case where there is no proof of a crime

3. However, it is difficult to accept such determination by the lower court in light of the record and the legal doctrine as seen earlier.

First of all, according to the records, Nonindicted Party 1 asserted that the instant claim was donated by Nonindicted Party 2 to Defendant 1, the heir of Nonindicted Party 2 after the death of Nonindicted Party 2, and that there was a dispute over the ownership of the instant claim between the two parties. After that, Nonindicted Party 1 reported the loss of the instant claim’s passbook and the instant passbook to the branch of Korea, the issuing bank of the instant claim, and reported the change of the seal and password of the instant passbook and the replacement of the said passbook. Thus, even if Nonindicted Party 1 obtained a title trust from Nonindicted Party 2, or Defendant 1 comprehensively consented to the use of his name, it is reasonable to deem that Nonindicted Party 1, as seen above, asserted that the instant claim was owned by himself, and was unable to dispose of the instant claim in accordance with the intention of Defendant 1, such as replacement of the instant passbook, etc., so that Defendant 1 could not dispose of the instant claim.

In addition, according to the records, while Defendant 2 also knew that Nonindicted 1 had known that he claimed ownership of the instant claim and replaced the passbook to the head of the Tong, Defendant 1 prepared and executed part of the above written request on behalf of Defendant 1, in preparing a written application for registration of transfer of claim in the name of Nonindicted 1. According to this, Defendant 2 was involved in Defendant 1’s criminal act under the recognition of the fact that Defendant 1 did not obtain the consent of Nonindicted 1 in preparing a written application for registration of transfer of claim in the name of Nonindicted 1 in the name of Nonindicted 1. Accordingly, Defendant 2 is not exempt from the criminal liability as an accomplice.

Nevertheless, the court below maintained the judgment of the court of first instance that acquitted the facts charged in this case on the grounds as seen earlier. In so doing, the court below erred by misapprehending the legal principles on the crime of forging private documents. The prosecutor’s ground of appeal pointing this out is with merit.

4. Therefore, without further proceeding to decide on the remainder of the grounds of appeal by the prosecutor, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent

Justices Kim Hwang-sik (Presiding Justice)