Defendant

Defendant (Defendant 1 and 2’s judgment) and Prosecutor (Defendant 2’s judgment of the lower court)

Madles

1. Incheon District Court Decision 2006Ma2922 decided Dec. 27, 2007; / 2. Suwon District Court Decision 2008Ma3827 decided Jun. 3, 2009

The part against the defendant in the judgment of the court of first instance and the part guilty in the judgment of the court of second instance are reversed.

A defendant shall be punished by imprisonment for one year.

The prosecutor's appeal on the acquittal portion of the judgment of the court below is dismissed.

1. Summary of grounds for appeal;

A. Prosecutor (as to the part not guilty of the judgment of the court below of the second instance)

The promissory note in the judgment of the court below is prepared by Non-Indicted 2, the representative director of Non-Indicted 1 Co., Ltd., who is authorized to prepare, and the defendant altered the face value and the date of payment (the part which is found guilty of the original trial), and as such, the defendant changed the time again on the payment date of the promissory note that he altered (the part which is found not guilty of the original trial), and thus, the defendant was guilty

B. Defendant

(1) As to the first instance judgment

① With respect to the invalidation of indication in the line of duty, the indication of provisional disposition was made by means of attaching a copy A4 paper to the inner wall of Nonindicted Co. 3’s factory, and the Defendant was removed, and there was no attachment indication on 15 side machines, or the Defendant was removed from the attachment indication attached on the front machines. ② As to the larceny part, the Defendant: (a) although the Defendant had allowed the victim Nonindicted Co. 5 in the factory of Nonindicted Co. 4 to move the machinery owned by Nonindicted Co. 6 to the office of Nonindicted Co. 6; (b) it was brought about for the purpose of securing the claim; (c) there was no intention of acquisition; and (d) as to the forgery part of securities, there was no alteration of the contents of a promissorysory note by Nonindicted Co. 1’s coercion with the authority to issue a promissory note under the name of the said company as the substantial representative; and (d) as to the embezzlement part, the Defendant did not have any influence on the acquisition or transfer of the machinery for the purpose of securing the assets of Nonindicted Co. 8 and 9.

(2) As to the second judgment of the court below

(A) misunderstanding of facts or misunderstanding of legal principles

Nonindicted 2’s representative director of Nonindicted Company 1 is merely a representative in form, and the actual representative of the said Company is Nonindicted 7, and Nonindicted 7 was authorized to issue a promissory note in the name of the said Company or to modify its contents, or was delegated by Nonindicted 2 at least the authority to do so, and the Defendant was not guilty of this part of the facts charged, even though the contents of a promissory note were modified under an agreement with Nonindicted 7, and thus, was not constituted an offense, the lower court erred by misapprehending the

(B) Unreasonable sentencing

The punishment sentenced by the court below (two years of suspended sentence in six months of imprisonment) is too unreasonable.

2. Judgment on the prosecutor's grounds for appeal

However, the court below's decision is just in finding that the securities subject to alteration should have been duly formed in the crime of alteration of securities, even if the defendant had changed the entries of the securities already modified by the defendant again, and judged that the defendant did not constitute a crime of alteration of securities, and found the defendant not guilty. This part of the judgment of the court below is erroneous in the misunderstanding of legal principles, which affected the conclusion of the judgment, and the prosecutor'

3. Ex officio determination

Prior to the judgment on the grounds for appeal by the defendant, the court of first instance and the court of second instance decided to jointly examine each appeal case against the judgment of the court below. Each of the offenses against the defendant in the judgment of the court of first instance and the judgment of the court of second instance in the relation of concurrent crimes under the former part of Article 37 of the Criminal Act, and should be sentenced to a single sentence within the scope of punishment aggravated for concurrent crimes in accordance with Article 38(1) of the Criminal Act.

In addition, in the first instance trial, the prosecutor applied for the amendment of the bill of amendment to the effect that the counterfeited part of the judgment of the court of first instance is changed by the alteration of the securities, and this court permitted this.

Therefore, among the judgment of the court of first instance and the judgment of second instance against the defendant, the guilty portion cannot be exempted from all of the reversal.

4. Judgment on the grounds for appeal by the defendant

Although there is a ground for ex officio reversal, the defendant's assertion of misunderstanding of facts or misapprehension of legal principles is still subject to the judgment of this court, and it should be examined as to this (However, since the invalid part of the crime in the judgment of the court of first instance was modified as stated below in the crime column in the trial below, the judgment of the defendant on this part is omitted

A. As to the larceny part

The Criminal Act refers to the act of removing possession of another person from possession against the will of the possessor and moving to his or her own possession or a third person. The intention of unlawful acquisition necessary for the establishment of larceny refers to the intention of using and disposing of another person's property in accordance with the economic method, such as his or her own property, and the mere infringement of possession cannot constitute larceny, but does not require the intention of permanent possession of economic interest. It is sufficient that the intention of infringing on ownership or the equivalent right, i.e., the intention of acquiring ownership or the equivalent right, or the intention of acquiring ownership or the equivalent right, regardless of whether it is the intention of acquiring ownership or the equivalent right. Furthermore, even if it is for the purpose of securing a claim, it is constituted larceny by excluding possession against the will of the possessor unless it is recognized that there was the explicit or implied consent of the possessor prior to the possession at the time of possession, and in such a case, it cannot be said that there was no intention of unlawful acquisition (see Supreme Court Decision 2006Do8584, Mar. 8, 2006).

Comprehensively taking account of the evidence duly adopted and examined by the lower court and the trial court as to the instant case, it can be recognized that the Defendant: (a) transferred three parts of the base machinery of the CNC Co. 5 (CNC) owned by Nonindicted Co. 10 in the Nonindicted Co. 4 Co. 5 (hereinafter omitted) to the office of Nonindicted Co. 6 located in Gwangjin-si (hereinafter omitted) without the consent of Nonindicted Co. 10 or Nonindicted Co. 5; and (b) even if the Defendant brought three parts of the base machinery for the purpose of securing the claim, it is difficult to deem that there was an intention of unlawful acquisition by the Defendant. Accordingly, this part of the Defendant’s assertion that there was no intention of unlawful acquisition is without merit.

B. As to the embezzlement part

In full view of the evidence duly adopted and examined by the court below and the trial court, it is sufficient to recognize that the defendant agreed to invest the 15th half machinery of this case in the non-indicted 8 corporation with the representative director in the non-indicted 9 corporation with the non-indicted 8, and accordingly, the above 15th half machinery was transferred to the above non-indicted 8. Thus, this part of the defendant's assertion is without merit.

C. As to the alteration of securities in the judgment of the court below Nos. 1 and 2

Comprehensively taking account of the evidence duly adopted and examined by the court below and the court below, it may be acknowledged that Nonindicted 7 was involved in the issuance of a promissory note in the name of the said company as he participated in the management of the said company. However, even in the case of the above evidence, it is difficult to view that Nonindicted 7, a representative director of the said company, operated the said company solely by excluding Nonindicted 2, or had all the authority to issue or change the contents of a promissory note in the name of the said company. Furthermore, even according to the above evidence, it cannot be deemed that Nonindicted 7 had the authority to change the face value of KRW 1,00,000,000 as stated in the facts charged, or that the said authority was delegated by Nonindicted 2. Accordingly, it cannot be deemed that the Defendant agreed with Nonindicted 7 or was forced by Nonindicted 7. Therefore, this part of the Defendant’s assertion is without merit.

5. Conclusion

Therefore, since the part of the judgment of the court of first instance against the defendant and the part of the judgment of the court of second instance are grounds for ex officio reversal of the conviction among the judgment of the court of second instance, the judgment of the court below is reversed ex officio under Article 364(2) of the Criminal Procedure Act without examining the defendant's assertion of unfair sentencing, and the defendant's appeal as to the acquittal portion among the judgment of the court of second instance is without merit and it is dismissed

The defendant was sentenced to six months of imprisonment with prison labor at the Incheon District Court on March 26, 2003 for the crime of forging securities, etc. and completed the execution of the sentence at the Incheon Detention House on September 14, 2003. On June 22, 2005, the defendant was sentenced to six months of imprisonment with prison labor for the crime of violating the Punishment of Tax Evaders Act in the same court on June 30, 2005 and the above judgment became final and conclusive on October 19, 2005, and operated the non-indicted 3 company.

1. Around 15:00 on November 12, 2004, at the factory of Nonindicted Co. 3 operated by the Defendant located in Suwon-si (hereinafter omitted), Nonindicted Co. 11, who was affiliated with Suwon District Court, entrusted the execution of Nonindicted Co. 5 Co. 11 with the execution by the creditor Nonindicted Co. 11, the execution officer of Suwon-si District Court, thereby impairing its utility by allowing Nonindicted Co. 12, the factory head of the factory, to remove the notice form of the 15th market price of CNC CNC (CNC) on the basis of the original decision prohibiting disposal of corporeal movables and the provisional disposition prohibiting transfer of corporeal movables (CNC), which he possessed by the Defendant on the basis of the original decision prohibiting disposal of corporeal movables and the provisional disposition prohibiting transfer thereof.

2. Around April 18, 2005, the victim non-indicted 4 Co., Ltd., located in Chungcheongnam-si (hereinafter omitted) had the company specialized in the movement of reflect machinery arbitrarily transfer an amount equivalent to KRW 120,000,000 to the office of non-indicted 6 located in the light-time (hereinafter omitted) of the total market value of three base machinery of CNC (CNC) owned by the victim non-indicted 5 Co., Ltd., which was occupied by Non-indicted 10 at the non-indicted 4 Co., Ltd., Ltd., located in Chungcheongnam-si (hereinafter

3. At around 14:00 on February 5, 2005, at the office of Nonindicted Co. 13 located in the Chungcheongbuk-gun, without authority, for the purpose of exercising and without authority, alteration of one copy of a promissory note issued by Nonindicted Co. 2 issued by Nonindicted Co. 1’s representative director of Nonindicted Co. 2 (bill No. 1 omitted), the amount of a promissory note with a face value of KRW 1,000,000, and the amount of issuance “ February 3, 2005,” using a verification pen in the form of an amount of money.”

4. On or around July 27, 2004, the defendant paid only KRW 369,150,580 out of the total price of 15 lines of CNC (CNC) purchased from the victim non-indicted 5 corporation and the total price of 10 lines of CNC (CNC) purchased from the same company around August 18, 2004, 369,150,520 won, and the remaining price of 33,19,420 won was reserved until the ownership was paid in full. The defendant and the non-indicted 8 were in custody for the damaged company while using the above machinery for profit-making, and the non-indicted 8 established the Suwon District Court around November 12, 200, and the defendant and the non-indicted 11 knew that the above non-indicted 11 had witness the seizure mark on the above line of machinery, and the defendant and the non-indicted corporation were not aware of the fact that the defendant and the non-indicted corporation were transferred to the above 15 line of ownership.

Around January 2005, at the end of the non-indicted 3's factory located in Jong-si (hereinafter omitted), 15 lines of the above line machinery were arbitrarily relocated to the non-indicted 9's factory located in Sungsung-si (hereinafter omitted), and around February 25, 2005, the above line machinery 15 units were assessed at the office of the non-indicted 9's company at KRW 800,000,000, and the above line machinery was transferred from the defendant to the non-indicted 8, thereby embezzlement 15 lines of the total market price of KRW 702,350,000 (CNC) at KRW 702,350,000;

5. When Nonindicted Co. 1 was liable for the discounted amount of promissory notes with respect to Nonindicted Co. 1, Nonindicted Co. 7 and 15, and Nonindicted Co. 7 lent a promissory note from Nonindicted Co. 2 to the representative director of Nonindicted Co. 1, the Defendant made an alteration thereof, and offered offers to repay the said discounted amount at a discount from other persons;

On February 3, 2005, in the middle station in the factory of Nonindicted 13 Co., Ltd. located in the Chungcheongnam-gun, which was located in the Chungcheongnam-gun, without authority for the purpose of exercising, the bill number (bill number 2 omitted), the face value of Nonindicted 1 Co. 1,00,000, the date of payment, March 15, 2005, the date of issuance February 3, 2005, which was issued by Nonindicted 7, which was lent by Nonindicted 2 from Nonindicted 2, and the bill number (bill number 2 omitted), and the face value and the date of payment of promissorysory notes, which became the Jeonbuk-gun bank prior to the place of payment, were distributed with influenced contents, and then the checks were written above, and then modified one of the promissory notes, which are securities, by stating it as follows: “The face value 50,000,000,” and “the date of payment on March 3, 2005.”

1. Defendant’s partial statement in the court below

1. The court below's partial statement of non-indicted 8 in the court below

1. The original judgment of Nonindicted 2 and 7 as well as the legal statement of the party branch

1. The court below's oral statement by Non-Indicted 16 of the witness

1. The statement by the police against Nonindicted 2, 7, 17, 18, and 19

1. Complaint;

1. A copy of a sales contract for goods, a copy of a notarial deed, a copy of a decision, a copy of a provisional disposal report for corporeal movables, a copy of each promissory note, a copy of a transfer contract, such as CNC Line, a copy of a machinery renunciation note, and a

1. Results of inquiry into Nonindicted Co. 5

1. Criminal records, investigation reports (verification reports at the expiration of the term of punishment), investigation reports (verification of the date of release), and copies of written rulings;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 140(1), 329, 214(1) (Alteration of Promissory Notes No. 1 omitted), 355(1), 30, 214(1), and 30(1), and 30(2) of the Criminal Act (Modification of Promissory Notes No. 2 omitted) of the Criminal Act, and choice of imprisonment with labor

1. Aggravation for repeated crimes;

Article 35 of the Criminal Act

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation of concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

The defendant denies all of the crimes of this case and did not reflect his mistake; the defendant was punished for the crime of forging securities; the defendant was recovered from 13 main machines of this case; the victim of larceny and embezzlement recovered from 13 main machines of this case; the defendant did not agree with the victim non-indicted 5 Co., Ltd.; the defendant was unable to agree with the victim; and other matters which are conditions for sentencing, such as the defendant's age, character and conduct, environment, family relationship, circumstances after the crime, etc., shall be determined as ordered

Judges Jeong Chang-hee (Presiding Judge)

Note 1) The original facts charged as to the portion of “the notice of provisional disposition in the above factory and the notice of provisional disposition attached thereto” are as follows: “a seizure indication attached to the goods upon seizure” or “a seizure indication attached thereto is recognized as having the identity of such fundamental facts and there was no hindrance to the Defendant’s exercise of right to defense.