[1] Requirements for establishing a crime of forging an official document, and the standard for determining whether an official document has the form and appearance

[2] The meaning of "documents" as stated in the crime concerning documents under the Criminal Code, and whether the image shown in the computer monitoring screen constitutes documents (negative)

[3] The meaning and method of “acting” as stated in the crime of uttering of a forged document, and whether it constitutes an event where an image of the forged document is displayed through a glickner, etc. and then it is viewed on the computer screen (affirmative)

[4] The case holding that in a case where the Chinese defendant was prosecuted for forging and uttering of a forged official document on the ground that the document created by the defendant is hard to recognize as having the appearance and form of a public document, and that the posting of the files made by the defendant cannot constitute the crime of uttering of a forged official document, on the part of the defendant's personal seal impression issued by the community service center after affixing Gap's official seal and Korean official seal to the upper top part of the administrative envelope brought by the community service center, and attaching it to the part of "use" in the center of the defendant's personal seal impression issued by the community service center, and the defendant's personal seal impression was affixed to the part of "use" in the center of the defendant's personal seal impression issued by the community service center

[1] If a document prepared by a general person as a document prepared within the authority of a public official or a public office having the form and appearance to believe that it was a document prepared within the authority of a public official or a public office, the crime of forging a public document is established. However, if a person with an average level of decentralization has paid little attention, and if the document was not prepared within the authority of a public official or a public office, it does not constitute the crime of forging a public document.

[2] In the crime concerning documents under the Criminal Code, the document refers to a copy by mechanical means that can continuously identify the original, which is an indication of the intention or idea indicated on the material object, or its social function and credibility, etc., which can be used as evidence of a legal and social nature. The image shown on the computer monitoring screen is merely an electronic reaction and cannot be viewed as being fixed on the screen continuously because it does not constitute “documents” in the crime concerning documents under the Criminal Code, since it cannot be seen as being continuously fixed on the screen when a program is implemented to see image files at that time.

[3] The crime of uttering of a forged document refers to using a forged document according to the method of using it as if it were a genuine document. As long as a forged document is used as a genuine document, there is no restriction on the method of uttering as long as it is used as if it were a genuine document, it constitutes an event where the forged document is imageed through a slner, etc. and then is transmitted and viewed on the computer screen. However, it is premised on the completion of forgery in the form of a document. Therefore, if it does not constitute a document with the form and appearance as a public document and thus, it cannot be established as a crime of uttering of a forged document.

[4] The case holding that, in a case where the defendant, Chinese, was indicted on charges of forging documents and uttering of forged public documents on the ground that it is difficult for the court below to find that the defendant's act of displaying forged public documents and forged public documents constitutes forgery of public documents on the ground that it is hard to find that the defendant's act of displaying forged public documents meets the official seal of the government agency of the Republic of Korea with the official seal of the government agency of the Republic of Korea and obtaining the official seal of the government agency of the Republic of Korea as the representative of the organization Gap, and the official seal of the organization Gap, which was produced in advance on the top of the left side of the administrative envelope brought by the community service center, affixed one certificate of personal seal impression at the center and affixed it on the part of the defendant's personal seal impression impression issued by the community service center, and that the document is not forged and falsified, or that the document's official seal of the government agency of the Republic of Korea and the document's official seal of the government agency of the Republic of Korea is not in conformity with the official seal of the government agency of the average level.

[1] Articles 225 and 229 of the Criminal Act / [2] Articles 225 and 229 of the Criminal Act / [3] Articles 225 and 229 of the Criminal Act / [4] Articles 225 and 229 of the Criminal Act; Article 325 of the Criminal Procedure Act

[1] Supreme Court Decision 92Do699 Decided May 26, 1992 (Gong1992, 2068), Supreme Court Decision 92Do226 Decided November 27, 1992 (Gong1993Sang, 316) / [2] Supreme Court Decision 2004Do788 Decided January 26, 2006 (Gong2006Sang, 365), Supreme Court Decision 2008Do1013 Decided April 10, 2008 / [3] Supreme Court Decision 2008Do5200 Decided October 23, 2008 (Gong2008Ha, 1648)

Defendant (English name omitted)

Defendant

Law Firm LLC, Attorneys Choi Jin-hun et al.

Jeju District Court Decision 2018No245 decided May 23, 2019

The judgment below is reversed, and the case is remanded to Jeju District Court.

The grounds of appeal are examined.

1. Determination on the grounds of appeal on the forgery of an official document and the part on the uttering of an forged official document

A. Relevant legal principles

If a document prepared by a general person as a document prepared within the authority of a public official or a public office, which has the form and appearance to believe that it was a document prepared within the authority of a public official or a public office, the crime of forging a public document is established. However, if a person with an average level of decentralization has not been prepared within the authority of a public official or a public office and does not have the form and appearance of a public document to the extent that it can be easily recognized that it was not prepared within the authority of a public official or a public office, the crime of forging a public document is not established (see Supreme Court Decision 92Do699 delivered on May 26,

On the other hand, in the crime related to documents under the Criminal Act, a document is a copy by mechanical means that makes it possible to identify the original, which is an indication of the intention or idea stated on the object continuously by letters or a virtual code that can substitute it, or its social function and credibility, etc., and its contents can be admitted as evidence with respect to important matters in legal and social life (see, e.g., Supreme Court Decision 2004Do788, Jan. 26, 2006). The image shown on the computer monitor screen is merely shown on the screen when the program to see the image file is implemented, and it cannot be deemed that it is continuously fixed on the screen because it causes an electronic response at that time, and it does not constitute "documents" in the crime related to documents under the Criminal Act (see Supreme Court Decision 2008Do1013, Apr. 10, 2008).

In addition, in the crime of uttering of a forged document, an event refers to the use of a forged document according to the method of using it as if it were the authentic document. As long as the forged document is used as if it were the authentic document, there is no restriction on the method of uttering, so long as it was used as if it were the authentic document, it constitutes an event where the forged document is imageed through a slner, etc. and then is transmitted and viewed on the computer screen (see Supreme Court Decision 2008Do5200, Oct. 23, 2008). However, since it is premised on the completion of forgery in the form of a document, if it does not constitute a document with the form and appearance, and thus, it is not possible to establish the crime of uttering of a falsified document.

B. Summary of the facts charged and the judgment of the court below

1) 이 부분 공소사실의 요지는, 피고인이 2016. 6. 28. 17:00경 ○○○○○○○○콘도미니엄 입주민들의 모임인 △△△△△△△△△시설운영위원회가 대한민국 정부 기관에서 실체를 인정받아 직인이 등록되었고 피고인은 단체 대표로 인증을 받았다는 등 위원회가 대표성을 갖춘 단체라는 외양을 작출할 목적으로, 서귀포시 □□동 주민센터에서 가져온 행정용 봉투의 좌측 상단 ‘서귀포시 □□동장’ 문구 옆에 피고인이 미리 제작하여 둔 ‘◇◇◇◇◇◇◇◇◇시설운영위원회’ 한자 직인과 ‘△△△△△△△△△시설운영위원회’ 한글 직인을 날인한 다음, 주민센터에서 발급받은 피고인의 인감증명서 중앙에 있는 ‘용도’란 부분에 이를 오려 붙이는 방법으로 행사할 목적으로 공문서인 서귀포시 □□동장 명의의 인감증명서 1매를 위조하고, 이를 피고인의 휴대전화 카메라 기능을 이용하여 촬영한 다음 사진 파일을 위 운영위원회에 가입한 수분양자들이 참여하는 위챗 메신저 단체대화방에 게재함으로써 행사하였다는 것이다.

2) The lower court affirmed the first instance judgment convicting the Defendant of the facts charged, on the ground that the appearance of documents created by the Defendant was somewhat bad, but in light of the following circumstances, it is reasonable to deem that the appearance of documents as an official document has satisfied the above facts charged.

가) 피고인은 처음부터 문서를 원본으로 행사할 의도가 아니라 사진을 찍어 위챗 단체채팅방에 게재할 생각으로 작성하였던 것으로 보이는데, 단체채팅방에 게재되는 사진파일의 특성상 화질이 원본에 비하여 떨어지는 데다, 상대방이 확대하여 보지 않는 이상 크기도 크지 않아서 상대방이 문서의 하자를 알아채기 쉽지 않다.

B) The other party to the event is a Chinese, and even if the appearance of a document was somewhat bad, it is highly likely to be mistaken as a genuine official document, because the other party to the event was not familiar with the appearance of the official document written in the Republic of Korea.

C. Judgment of the Supreme Court

However, we cannot agree with the above determination by the court below for the following reasons.

1) Whether a document is forged or not, i.e., the form and appearance of an official document, must be determined on the basis of the document created by the defendant. The prosecutor does not specify the subject matter of the aforesaid Article in this part of the facts charged in writing, and did not specify the document as an image recorded and transmitted.

2) The protected legal interest in the crime of forging an official document is the public trust for the authenticity of the official document, so whether the document satisfies the form and appearance of the official document shall be determined by the general public with an average degree of decentralization. The defendant cannot be the basis for determining the person specifically planned as the other party to the event.

3) Ultimately, determination should be made as to whether the documents created by the Defendant have the appearance and form sufficient to be recorded in a genuine document when the general public with an average level of gymarization. In full view of the following circumstances revealed by the evidence duly adopted and investigated by the lower court, it is difficult to recognize that the documents created by the Defendant have such appearance and form merely based on the evidence submitted by the prosecutor.

가) 피고인은 행정용 봉투 중 ‘보내는 사람 서귀포시 □□동장’ 등이 기재된 부분을 오려 내어 ‘◇◇◇◇◇◇◇◇◇시설운영위원회’ 한자 직인과 ‘△△△△△△△△△시설운영위원회’ 한글 직인을 차례로 날인한 후 서귀포시 □□동장이 발행한 자신의 인감증명서 ‘용도’란에 이를 붙이는 방법으로 이 사건 문서를 만들었다.

B) As a result, the column for the use of a certificate of seal imprints with other parts of the certificate of seal imprint affixed with materials and colors different from those of the other parts. The color of the other parts is both black, while the color of the other parts is black, the color of the parts affixed by the seal imprint is in a color color, and the active itself is also different. While the seal imprint of the defendant is black, the seal imprint of the certificate of seal imprint is affixed by the defendant on the other hand, and the official seal and Korean official seal is red.

C) As above, documents created by the Defendant cannot be deemed as documents prepared by a public official or a public office as an organization registered “△△△△△△ Facility Management Committee” or as a document prepared to prove that the Defendant is the representative of the said organization. If a person with an average level of decentralization paid little attention, the above fact can be easily recognized.

4) As long as it is difficult to deem that a document created by the defendant was not in the appearance and form as a public document and thus, the crime of forging a public document is established, the act of photographing the document and printing it in the Messen organization or page room does not constitute the crime of uttering of a forged public document.

5) Nevertheless, the lower court, on the grounds indicated in its reasoning, found that the document created by the Defendant had the appearance and form of the official document, and found the Defendant guilty of this part of the facts charged for forging the official document and the uttering of the forged official document. In so determining, the lower court erred by misapprehending the legal doctrine on the objects and standards for determining the forgery of the official document under Article 225 of the Criminal Act, thereby adversely affecting the conclusion of

2. Determination on the remaining grounds of appeal

The lower court convicted the Defendant of interference with business and injury among the facts charged in the instant case. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the establishment of the crime

3. Scope of reversal

As seen earlier, the part of the judgment of the court below regarding the forgery of official document and the uttering of forged official document should be reversed. Since the above reversal part and the remaining conviction part related to concurrent crimes under the former part of Article 37 of the Criminal Act should be sentenced to a single sentence, it should be reversed together.

4. Conclusion

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)