[1] The degree of preparation of a document in relation to the crime of forging a private document and the standard for its determination

[2] Whether the court's failure to demand the prosecutor to change the indictment is illegal (negative), and whether the court's failure to recognize the minor criminal facts above the content of the indictment ex officio without the procedure for changing the indictment is illegal (negative with qualification)

[1] Article 231 of the Criminal Act / [2] Articles 254 and 298 of the Criminal Procedure Act

[1] Supreme Court Decision 95Do2221 delivered on December 26, 1997 (Gong1998Sang, 450) / [2] Supreme Court Decision 99Do3003 delivered on December 24, 1999 (Gong2000Sang, 353) Supreme Court Decision 2004Do5652 Delivered on December 10, 2004 (Gong2005Sang, 157) Supreme Court Decision 2005Mo564 Delivered on March 30, 2006 (Gong2006Sang, 777)

Defendant

Defendant and Prosecutor

Busan District Court Decision 2004No3205 delivered on April 7, 2005

All appeals are dismissed.

1. Judgment on the Defendant’s grounds of appeal

The court below found the defendant guilty of the attempted fraud in the judgment of the court below by taking full account of the adopted evidence. In light of the records, the selection of evidence and the finding of facts in the court below is just, and there is no violation of the rules of evidence as otherwise alleged

2. Judgment on the grounds of appeal by the prosecutor

A. The crime of forging a private document is established when the form and appearance to the extent that the nominal owner can see in writing the document actually prepared is sufficient to mislead the general public into the authentic private document of the nominal owner. Thus, it does not necessarily require the signature or seal of the nominal owner. However, whether it is sufficient for the general public to mislead the document into the authentic private document of the nominal owner should be determined by comprehensively taking account of the form and appearance of the document, as well as various circumstances such as the process of preparation, type, content, and transaction of the document (see, e.g., Supreme Court Decision 95Do221, Dec. 26, 1997).

In the case of the deposit certificate of this case, the court below is just in holding that it is not sufficient to regard it as a document completed with the appearance and form sufficient to mislead the non-indicted in the real document prepared by the non-indicted, on the basis of the fact that the document was prepared only as computer activation without any part as to the deposit certificate of this case, and the defendant's name was affixed after the name of the co-author, but the name of the non-indicted is not affixed next to the name of the non-indicted. There is no error in the misapprehension of legal principles as to the concept of document in the crime of forging

B. The court's issue of whether to demand the prosecutor to change the indictment belongs to its discretion and thus it cannot be deemed unlawful since the court did not demand the prosecutor to change the indictment (see Supreme Court Decision 9Do3003, Dec. 24, 199, etc.). In a case where a minor criminal facts are acknowledged within the scope recognized as identical to the facts charged and where it is deemed that there is no possibility of causing substantial disadvantage to the defendant's defense right in light of the progress of the trial, criminal facts different from the facts charged as stated in the indictment ex officio may be acknowledged. However, even in such a case, unless it is recognized as significantly contrary to justice and equity, it cannot be viewed as unlawful since the court, ex officio, did not recognize the facts charged (see Supreme Court Decision 2004Do5652, Dec. 10, 2004, etc.).

In light of the above legal principles and the records, the court below cannot be deemed unlawful on the ground that the prosecutor demanded a prosecutor to amend the bill of indictment as a crime of forging a private document or did not examine and determine whether the crime of forging a private document was committed. The prosecutor's grounds for appeal on this issue cannot be accepted.

3. Therefore, all appeals filed by the Defendant and prosecutor are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)