Defendant

Prosecutor

Lee Tap-ap

Suwon District Court Decision 2009MaMa14 Decided May 26, 2010

The prosecutor's appeal is dismissed.

1. Summary of the judgment of the court below

A. The facts charged in this case

From November 1, 2002 to January 25, 2006, the Defendant currently served as the head of the headquarters from Nonindicted Co. 2, a marriage information company, to Nonindicted Co. 1, the head of the headquarters. On May 26, 2006, Nonindicted Co. 2 filed a lawsuit claiming compensation against the Defendant at the Seoul Central District Court No. 2006Gahap45270 on May 26, 2006, and the Defendant filed a lawsuit claiming compensation against the Defendant as a counterclaim to confirm the invalidity of the unfair dismissal, while the lawsuit is pending.

(1) In submitting as evidence the copy of the monthly savings account of the defendant in relation to the above lawsuit at the office of the office of the non-indicted 1 corporation located in Gangnam-gu, Seoul Metropolitan City (hereinafter omitted) around the end of December 2007 as evidence, even though the above non-indicted 1 corporation received benefits for April 2006 from the above non-indicted 1 corporation to the full bench, it was not authorized to open part of the contents of the benefits payment and submit it as evidence to the full bench for the purpose of uttering, and without the authority, to use it. The non-indicted 1 corporation, the non-indicted 1 corporation, the non-indicted 2, 694, 180 of the contents of the deposit account in the name of the defendant in the name of the head of the bank who was issued the non-indicted 1 corporation to the non-indicted 1 corporation and the non-indicted 1 corporation which was the depositor in the name of the head of the bank. The copy of the deposit account in the name of the new head of the bank shall be made invalid and copied.

(2) On the 14th day of the same month, Nonindicted 3 Law Firm Office located in Gangnam-gu, Seoul (hereinafter referred to as the “2 omitted) submitted a copy of the bankbook altered as above to Nonindicted 4 attorney-at-law who is unaware of the circumstance, and made the above Nonindicted 4 submit it as evidence to the full bench and use it.

B. Summary of the judgment of the court below

(1) Basic legal principles

The crime of altering a private document is established when there is a risk of undermining the public trust by forging a new probative value by altering the content of the document already prepared to the extent that the identity is not undermined. In preparing and amending a private document, if the nominal owner explicitly or implicitly consented to the preparation and modification of the private document, or if the nominal owner knew of the fact at the time of the act in full view of all objective circumstances at the time of the act, the crime of misappropriation or alteration of the private document is not established.

(2) As to whether “new probative value to the extent of undermining the public credit” has been written or not

The defendant's entry of the passbook in the name of the new bank "Non-Indicted Party 1 corporation" in the "Non-Indicted Party 1 corporation, 2,694,180 won" in the "Non-Indicted Party 1 corporation, 2,694, 180 won" was found to have created the appearance of "Non-Indicted Party 1 corporation," even though it is recognized that the defendant created the appearance of "Non-Indicted Party 2 corporation, 26, 294,180 won". The above act of the defendant is not only the fact that the depositor is merely unrecognizable, but also the fact that the above act of the defendant brought about a situation where the depositor is not clearly known; ② compared with the entry of other transactions in the book, if the defendant submitted a copy of the passbook whose name the name of the depositor was entered, it can be easily known that the defendant was working in the non-Indicted Party 1 corporation from April 1, 2006 at the time of submitting a copy of the passbook whose appearance changed; ④ it was confirmed through a public order for the defendant's trust.

(3) As to the implied acceptance or constructive acceptance by the new president

① Article 4 of the Act on Real Name Financial Transactions and Confidentiality grants the right to manage the financial transaction information to the holder of a title deed; ② the old bank branch and sub-branch of the new bank and non-indicted 5 also put the name in the name as requested by the holder of a title deed; ② if the name is changed; the account number is put in the account number; ③ if the defendant requests the new bank to keep the name in the official title of the depositor of a specific transaction in the name of the new bank in the light of the above statement made by Non-indicted 5; ④ even if the new bank knew that the defendant submitted part of the financial transaction information to the court due to his personal reasons, the new bank must be presumed to have complied with it as a matter of course; ④ Even if the new bank president knew that the defendant did not object to the new bank's act, etc., considering the objective circumstances at the time of the defendant's act as stated in the facts charged, it should be presumed that the new bank owner, a copy of the passbook of this case, submitted it to the court.

(4) As to the defendant's criminal intent

① In full view of the fact that monthly salary received from Nonindicted Co. 1, who had been newly employed by the investigative agency up to this court, was disclosed and that the facts leading to 2,694,180 were submitted, the Defendant consistently vindicates that the Defendant submitted this part. ② Although the copy of the passbook in this case is no choice but to be viewed as a document under the name of the new bank president and the Defendant, the principal account holder appears to be the Defendant, the principal account holder, and ③ the account holder is entitled to the specific account holder out of the details of the passbook in his name; ④ Nonindicted Co. 1, the account holder, was not related to the issues of the lawsuit, it is difficult to view that the Defendant’s criminal intent was sufficiently proven by the evidence submitted by the prosecutor.

(5) Conclusion

Ultimately, the defendant cannot be deemed to have altered the copy of the passbook in the name of the new president, and as long as the alteration of the private document is not recognized, the use of the altered private document is not recognized, so the defendant shall be acquitted.

2. Summary of grounds for appeal by the public prosecutor;

The court below found the defendant not guilty of the facts charged in this case on the ground that it cannot be deemed that new probative value was forged to the extent of undermining public trust due to the defendant's act, and that the consent of the new president, a joint name of a copy of the passbook in this case, is presumed, and it is difficult to recognize the defendant's criminal intent

However, the deposit passbook does not only prove the deposit balance, but also has the function of proving who is mainly engaged in the transaction with the deposit title holder, the time of giving and receiving money. The defendant deleted the "Non-Indicted Party 1 Co., Ltd." as stated in the depositor column from the transaction details of the passbook on April 25, 2006, thereby working out the appearance of the defendant on May 25, 2006 from the non-Indicted Party 1 Co., Ltd., and the new probative value of the defendant's act should be reduced to the extent that it harms public credit.

In addition, the name of the depositor of the deposit passbook is determined by the intention of the depositer who is not the intention of the defendant, and the name of the depositer of the deposit passbook to be presented as evidence to the court cannot be deleted as requested by the defendant. Thus, it cannot be presumed that the consent of the new president of the deposit passbook is presumed.

In addition, if the defendant deleted the name of the depositor of the deposit passbook without the consent of the new president of the bank, it shall be deemed that there was an intention to alter the private document, and even if the defendant committed the above act with the intention to conceal the amount of salary received from the non-indicted 1 corporation, it shall not be denied the intention.

Therefore, even though the defendant should be pronounced guilty, the court below erred by misapprehending the legal principles and acquitted the defendant.

3. Determination

On the other hand, if we examine the reasons for innocence in comparison with the record and closely, we agree with the disposition that the court below judged not guilty of this part of the facts charged is just, and there is no evidence to acknowledge that there was a criminal intent to acquire by deceit. Therefore, there is no error of misunderstanding of facts or misunderstanding of legal principles as pointed out by the prosecutor in the judgment of the court below. Therefore, the prosecutor's

4. Conclusion

Since the prosecutor's appeal is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Park Jae-sik (Presiding Judge)