[1] The nature of the crime of forging a private document where the document author prepared the document without the approval of the person authorized to prepare the document (affirmative)

[2] Whether it is a medical practice under Article 25 of the Medical Service Act to prescribe herb drugs after diagnosing sick persons with an erroneous analysis as of the date of birth of a patient (affirmative)

[3] Whether an act of preparing medicinal herbs by arbitrarily adding other medicinal herbs to the prescriptions prescribed in the scarcitys according to the prescription based on the error analysis constitutes the manufacture of medicines (affirmative)

[4] The burden of proving false perceptions in relation to the crime of defamation of publication which is false or false

[5] In a case where a public prosecution was instituted due to the defamation of a publication in a false or false manner, whether it can be punished as defamation or defamation in a factual manner without any changes in the indictment (affirmative)

[6] Whether the court's action of not guilty is unlawful even though it can be acknowledged as a minor crime without modification of indictment ex officio (negative)

[7] In a case where a public prosecution was instituted due to defamation of a publication with false facts, the case holding that the judgment of the court below which acquitted the defendant without punishment due to defamation or factual defamation without any changes in the indictment

[1] If a person who was not delegated with the authority to prepare a document prepares a document in excess of the authority without obtaining approval from the person who was authorized to prepare the document, it constitutes a crime of forging a private document.

[2] If a herb druggist performed an erroneous analysis and prescribed herb drugs after diagnosis of the name of disease as the date of birth of a patient, the error analysis is used as a method of determining the patient’s beds and name of disease, and thus, it can be deemed as a kind of diagnosis method. The prescription by an erroneous analysis is a kind of treatment. Thus, it constitutes a medical practice under Article 25 of the Medical Service Act.

[3] A herb druggist may mix and sell herb drugs according to the prescriptions or prescriptions of herb doctors listed in the accepted medical book at the time of request of patients pursuant to Article 36(2) of the Pharmaceutical Affairs Act. However, if a herb druggist diagnosed the name of sick in accordance with an erroneous analysis and prepares medicines at his/her discretion by adding other herb drugs to the prescriptions listed in his/her prescription on the basis of his/her prescription, this constitutes not a mixed sale under Article 36(2) of the Pharmaceutical Affairs Act, but a manufacture of medicines under Article 26(1) of the Pharmaceutical Affairs Act.

[4] In order to establish a crime of defamation in publications where false facts under Article 309(2) of the Criminal Code are false, the defendant must be aware that a timely fact is false in disclosing false facts. In other words, the prosecutor bears the burden of proving the criminal intent.

[5] Among the facts charged of defamation in a false or misleading publication under Article 309 (2) of the Criminal Code, the facts charged of defamation in a factual publication under Article 309 (1) of the same Act or the facts charged of defamation under Article 307 (1) of the same Act are also included. Thus, without recognizing that the facts alleged by the defendant are false, the court may recognize it as a crime of defamation in a factual publication under Article 309 (1) of the same Act without any amendment procedure. In addition, if it is deemed that there is no concern that the defendant's exercise of his/her right of defense might not cause any substantial disadvantage in light of the trial process unless the purpose of defamation is recognized, it may be recognized as defamation under Article 307 (1) of the same Act.

[6] Even if the court can recognize ex officio the minor criminal facts included in the criminal facts which are charged within the scope recognized as identical to the facts charged, if it does not punish them on the grounds that the case of the actual criminal facts is serious in comparison with the facts charged, and it does not constitute a violation of justice and equity in light of the purpose of the criminal procedure, such as prompt discovery of substantial truth through appropriate procedures, unless it is acknowledged that such criminal facts are clearly contrary to justice and equity, it shall not be deemed illegal.

[7] In a case where a prosecution was instituted due to the defamation of a publication containing false facts under Article 309(2) of the former Criminal Code, the case affirming the judgment below which acquitted the defendant without punishment due to defamation of a factual publication under Article 309(1) of the same Act or defamation under Article 307(1) of the same Act without any changes in the indictment

[1] Articles 231 and 234 of the former Criminal Code (amended by Act No. 5057 of Dec. 29, 1995) / [2] Article 5 of the Act on Special Measures for the Control of Public Health Crimes, Article 25 (1) of the Medical Service Act / [3] Articles 26 (1) and 36 (2) of the Pharmaceutical Affairs Act / [4] Article 309 (2) of the former Criminal Code (amended by Act No. 5057 of Dec. 29, 1995) / [5] Articles 307 and 309 (1) and (2) of the former Criminal Code (amended by Act No. 5057 of Dec. 29, 1995) / [6] Article 309 (2) of the former Criminal Code (amended by Act No. 5057 of Dec. 29, 195); Article 29 (2) of the Criminal Procedure Act (amended by Act No. 985) of the former Criminal Code

[1] Supreme Court Decision 74Do2035 delivered on July 13, 1976 (Gong1976, 9303), Supreme Court Decision 83Do2257 delivered on October 25, 198 (Gong1983, 1791), Supreme Court Decision 83Do2408 delivered on June 12, 198 (Gong1984, 1237) / [2] Supreme Court Decision 77Do3156 delivered on September 26, 197 (Gong1978, 11097), Supreme Court Decision 80Do2974 delivered on December 29, 198 (Gong198, 294) (Gong1979, 1992, 194) / [309Do1975 delivered on July 28, 1992]

Defendant 1 and one other

Defendants and Prosecutor

Attorneys Hun-Ba et al.

Seoul High Court Decision 94No3855 delivered on August 1, 1996

Each appeal shall be dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal as to Defendant 1’s exercise of a falsified investigation document and Defendant 2’s ground of appeal

In full view of the evidence revealed by the court below, the measures that recognized the defendants 2' acts of forging the private document of this case and the defendants' acts of uttering of the private document of this case are just and acceptable in light of the records, and there is no error of misconception of facts due to the violation of the rules of evidence. The purport of the court below's decision on this point is that the burden of proof that the defendant 2 had the authority to prepare each document under the name of the Director General of the Democratic Freedom of Freedom of democracy of this case is not the above defendant, but that the above defendant was recognized as not having the authority to prepare each document of this case at the time of committing the crime of this case. Thus,

As duly admitted by the court below, if Defendant 2, who was not delegated with the authority to prepare each of the instant documents under the name of the Secretary General of the Democratic Freedom Party at the time of committing the instant crimes with respect to each of the instant documents, prepared each of the instant documents in excess of the authority without obtaining approval from the person with the authority to prepare documents, it shall be deemed the crime of forging private documents. Thus, the court below's decision that held to the same purport is just and there is no violation of law

Therefore, all of the defendants' arguments that the judgment of the court below contains errors in misconception of facts or misapprehension of legal principles due to the violation of the rules of evidence, as to the crime of forging private documents and the uttering thereof.

2. As to Defendant 1’s ground of appeal on violation of the Act on Special Measures for the Control of Public Health Crimes and violation of the Pharmaceutical Affairs Act

In light of the records, the court below's approval of the violation of the Act on Special Measures for the Control of Public Health Crimes of this case and the violation of the Pharmaceutical Affairs Act by Defendant 1's violation of the Act on Special Measures for the Control of Public Health Crimes of this case shall be justified

As duly admitted by the court below, if Defendant 1, who does not meet the qualifications of herb druggist, issued a medical prescription after the diagnosis of the name of sick at the date of birth of the patient, he/she can be deemed as a kind of diagnosis method because it was used as a method of investigating patient's beds and name of sick, and the prescription by an error analysis is a kind of treatment, and thus, it constitutes medical practice under Article 25 of the Medical Service Act. Therefore, the court below's assertion that there is an error of law in the misapprehension of legal principles as to the Act on Special Measures for the Control of Medical Service and Public Health Crimes is without merit

In addition, the mixed selling act permitted to a herb druggist under Article 36 (2) of the Pharmaceutical Affairs Act refers to the act of mixing and selling herb drugs according to the prescriptions listed in the accepted medical book or the prescription of herb doctors at the time of the patient's request. However, as recognized by the court below, if Defendant 1 diagnosed the name of disease through the erroneous analysis and prepares herb drugs by adding arbitrarily different herb drugs to the prescriptions listed in his prescription on the basis of his prescription, it shall not be a mixed selling under Article 36 (2) of the Pharmaceutical Affairs Act, but it shall be deemed that it constitutes the manufacture of medicine under Article 26 (1) of the Pharmaceutical Affairs Act (see Supreme Court Decision 93Do153 delivered on August 27, 1993). The decision of the court below to the same purport is just and there is no violation of law by misapprehending the legal principles as to the Pharmaceutical Affairs Act, as alleged in the grounds for appeal.

3. As to the ground of appeal on Defendant 1’s defamation of the publication

In light of the records, the court below's determination that Defendant 1 guilty of some of the facts charged as to defamation of the publication of this case among the facts charged as to the defamation of the publication of this case is just and acceptable, and there is no error of misconception of facts due to the violation of the rules of evidence.

4. As to the Prosecutor’s Grounds of Appeal

가. 기록에 의하면, 1983년에 실시된 한약업사자격시험에서 평균 60점 이상을 받고도 불합격한 자들로 구성된 전국83한약업사자격취득대책위원회 고문인 공소외 지용규가 위 대책위원회의 회원들로부터 한약업사자격취득을 추진한다는 명목으로 1인당 금 300만 원씩을 갹출받아 자신이 대표로 한약업사자격취득을 위한 행정소송을 제기함에 있어 김종화 변호사를 소송대리인으로 선임하고 그 수임료로 착수금 1,000만 원, 성공보수금 9,000만 원을 선불하되 패소할 경우 성공보수금은 반환받기로 약정하여 합계 금 1억 원을 위 갹출금에서 지급하였으나 1991. 9.경 위 행정소송에서 패소한 사실, 새로운 구제책을 찾고 있던 위 지용규는 공소외 조규봉의 소개로 1992. 10. 14. 이충범 변호사 사무실에서 이충범 변호사를 만나 위 대책위원회 회장이던 공소외 김종갑의 입회하에 한약업사 자격취득을 위한 소송이나 입법청원 등 모든 가능한 법적 절차를 위임하는 변호사선임계약을 체결하였는데, 선임료는 착수금을 금 1억 2,000만 원, 성공보수를 금 2억 원으로 하고, 착수금을 위 김종화 변호사로부터 반환받을 금 9,000만 원에 금 3,000만 원을 더하여 지급하기로 하여 착수금 중 금 1억 500만 원은 지급일을 1992. 12. 12.로 하는 지용규 발행의 약속어음 5장을 교부하고, 나머지 금 1,500만 원은 계약 당일 대전에 내려 간 위 지용규가 온라인으로 이충범 변호사의 계좌에 입금하였고, 위 어음의 지급기일까지 어음대금을 준비할 수 없게 된 위 지용규가 같은 해 12. 9.경 이충범 변호사에게 어음의 지급기일연장을 요구하여 지급기일을 1993. 1. 8.로 하는 지용규 발행의 약속어음 3장으로 교환하였다가 1993. 1.경 금 7,500만 원만 결제되고 금 3,000만 원짜리 어음 1장에 대하여는 지급기일을 다시 같은 해 1. 20.로 연기하였다가 1. 20. 전에 지용규가 이충범 변호사에게 금 3,000만 원을 지급하고 어음은 반환받은 사실, 그런데 위 선임계약 후 지용규는 당시 이충범 변호사가 민주자유당의 김영삼 대통령후보의 아들인 김현철의 선거운동에 관여하고 있음을 알고 김현철에게 자신들의 문제에 도움을 청하려 하여 이충범 변호사의 소개로 1992. 11.초 여의도 맨하탄호텔 안의 김현철의 사무실에서 김현철을 만나 자신들이 한약업사 자격을 취득할 수 있도록 해 달라고 부탁하였고, 그 후 1992. 11. 26. 서울 팔레스호텔에서 위 대책위원회 회원 70여 명이 모인 자리에 김현철이 이충범 변호사와 함께 나가 지지를 부탁하고 이충범 변호사는 구제를 위하여 최선을 다하겠다고 인사를 한 사실, 지용규를 비롯한 위 대책위원회 회원들은 선거 후에 자신들의 구제문제가 해결될 것으로 기대를 하였는데 김영삼 대통령이 취임한 후에도 곧바로 성과가 없자 위 위원회 회원들은 지용규에 대하여 돈의 사용처를 추궁하는 등 하여 지용규가 곤경에 처하게 되자, 지용규는 1993. 1.말경 서울 서초구 팔레스호텔에서 열린 83한약업사자격취득 추진위원회에서 회원의 질문에 답하는 과정에서 한약업사자격취득을 위한 정치자금을 현찰이 없어 어음을 할인하여 현금으로 바꿔서 주었다는 취지로 말하고, 또 같은 달 31. 유성 아드리아호텔에서 열린 83한약업사자격취득 추진위원회 총회에서 어음을 사채시장에서 바꿔서 정치자금으로 제공하였는데 비밀을 지켜야 하므로 다 말할 수 없다는 취지로 말하고, 그 무렵 지용규는 위 약속어음이 정치자금의 지급에 사용되었다고 한 자기의 주장에 맞추기 위하여 변호사선임계약 당시 어음을 발행하면서 어음부전에 "이충범"이라고 기재하였던 것에 ( )를 치고 그 아래에 "김현철"이라고 추가 기입한 사실, 피고인 1도 위 대책위원회의 회원을 통하여 이러한 내용을 들어서 알게 되어 1994. 1.말경 지용규에게 대통령집무실에 팩스로 자신들의 구제를 요구하는 진정서를 내겠다고 하자 지용규는 위 어음부전을 팩스로 피고인 1에게 전송하여 이를 받아 본 피고인 1은 위 어음이 정치자금으로 김현철과 이충범에게 교부된 것으로 생각하여 그러한 내용의 진정서를 대통령비서실에 팩스로 제출하였고, 그 후 1994. 2. 4. 서울 잠실 롯데호텔에서 이충범 변호사와 지용규가 피고인 1에게 위 돈이 정치자금이 아니라 변호사 수임료인데 왜 그런 진정을 하느냐고 추궁하였으나 피고인은 이를 받아들이지 아니한 후, 이 사건 보건범죄단속에관한특별조치법위반 등의 혐의로 구속되었다가 보석으로 석방되면서 1994. 4. 26. 22:30경 서울구치소 앞에서 한겨레신문 이인우 기자 등 언론사기자 20여 명에게 "1억 500만 원을 여의도 맨하탄호텔 김현철의 사무실에서 이충범의 소개로 민원해결 관련 정치자금으로 주었다."고 말한 사실이 인정된다.

B. According to the above facts acknowledged, since the above statement by Defendant 1 is not true, it is clear that the above statement is a statement of false facts.

However, in order to establish the crime of defamation by publication under Article 309(2) of the Criminal Act, the defendant must be aware that the statement of false facts is false in the statement of false facts. The awareness of such false facts, namely, the burden of proof for the criminal intent, is the prosecutor (see Supreme Court Decision 94Do2186, Oct. 28, 1994). However, in light of the above-mentioned facts, in this case, in light of the above-mentioned facts, the defendant 1 was convicted that the statement that the non-indicted Subdivision was true that the money in this case was delivered as political funds, and such conviction appears to have not been easily broken down only by the attorney-at-law and the rule of evidence on February 4, 1994. Thus, the above defendant was unable to recognize that his statement was false.

Therefore, in this case, since there is no evidence that Defendant 1 was aware that he was false, that the above Defendant’s damage to reputation in publications under Article 309(2) of the Criminal Code is not guilty. Although the judgment of the court below does not seem to be insufficient in its reasoning, it is the purport above, the court below's measure is acceptable, and there is no error of law of incomplete fact-finding in violation of the rules of evidence.

C. Among the facts charged of defamation in a false or misleading publication under Article 309(2) of the Criminal Act, the facts charged of defamation in a factual publication under Article 307(1) of the same Act or the facts charged of defamation under Article 307(1) of the same Act are also included. Thus, without recognizing that the facts alleged by the defendant are false, the court may recognize them as a crime of defamation in a factual publication under Article 309(1) of the same Act (see Supreme Court Decision 93Do1732 delivered on September 24, 1993), and if the purpose of defamation is not recognized, it may be recognized as a crime of defamation under Article 307(1) of the same Act if it is deemed that there is no concern that the defendant's exercise of his/her right to defense would be seriously disadvantaged unless the purpose of defamation is recognized.

However, even if the court can recognize ex officio the criminal facts included in the criminal facts which are charged within the extent that the identity of the facts charged is recognized, if it does not punish the criminal facts for the reason that the facts charged are serious in comparison with the facts charged, and thus the indictment has not been modified, it cannot be viewed as illegal on the ground that the court did not recognize the criminal facts ex officio unless it recognizes it as significantly contrary to justice and equity in light of the purpose of the criminal procedure, such as prompt discovery of substantial truth through appropriate procedures, unless it is recognized as contrary to justice and equity (see Supreme Court Decision 93Do3058 delivered on December 28, 1993).

In the case of this case, in light of the fact that the court below found the defendant guilty as to the part of the crime of defamation committed against the publication of this case, which was prosecuted for a single crime, and the progress of this case, it is not recognized that the defendant does not punish the above facts in this case as provided by Article 309 (1) or 307 (1) of the Criminal Act, and it is clearly contrary to justice and equity. Thus, the court below's decision that the defendant was not convicted ex officio is not erroneous.

Therefore, there is no reason for the prosecutor's assertion that the judgment of the court below is erroneous in the misconception of facts or misapprehension of legal principles due to the violation of the rules of evidence.

5. Therefore, each appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Park Jong-ho (Presiding Justice)