[1] Standard for determining whether the act of preparing documents in the name of representative director of a corporation constitutes the above Article (=existence of authority to prepare)

[2] In a case where the representative director abused his authority and prepares a document in the name of the stock company in a false manner, whether the crime of preparing qualification documents or forging private documents is established (negative)

[3] Requirements for legitimate filing of a document under the name of the company by a person delegated with authority by the representative director (=individual, specific delegation or consent)

[4] In a case where the representative director A, who was delegated by the representative director B, prepared a receipt and tax invoice with false contents in the name of two companies while carrying out the business affairs of the representative director B, the case holding that the part in the name of the B company is an act without individual, specific delegation or consent of B, and thus constitutes the crime of forging private documents and uttering of an investigation document, but the part in the name of the A company does not constitute the act even if it was already indicated as the

[1] Since the subject to which the intention or concept expressed in a document prepared by the representative director in the manner of representing his/her representative qualification belongs is a stock company that is not an individual representative director, the nominal owner of the document is a stock company. Whether the act of preparing the document constitutes the above Article shall be determined depending on whether the originator has the authority to lawfully prepare the document in the name of the stock company. It shall not be determined whether the document has received delegation or consent from the person whose representative director is indicated in the document.

[2] The legitimate representative director of the corporation originally has the authority to do all judicial or extra-judicial acts with respect to the business of the corporation. Thus, in principle, the act of the representative director to prepare a document in the name of the corporation does not constitute the preparation of qualification documents or the above Article. The same shall apply where the content of the document is made for the purpose of promoting his or her own interest or a third party by means

[3] Even if a legitimate representative director is a corporation, he/she is not allowed to comprehensively delegate his/her authority to allow another person to perform the business of the representative director. Therefore, an act of preparing documents in the name of a corporation that is comprehensively delegated by the representative director is an act of preparing documents in the name of a corporation without authority, which constitutes preparation of qualification documents or an act of preparing documents in the name of a corporation, and exceptionally, only when delegated or consented to the preparation of documents in the name of a corporation by the representative director individually

[4] In a case where the representative director A, who was delegated by the representative director B, prepared a receipt and tax invoice with false contents in the name of two companies while carrying out the business affairs of the representative director B, the case holding that the title of the B company is an act without individual, specific delegation or consent of B, and thus constitutes the crime of forging private documents and uttering of an investigation document, but the title of the A company does not constitute the act even if it was already indicated as the representative director without consent of the former

[1] Article 231 of the Criminal Act / [2] Article 231 of the Criminal Act / [3] Articles 231 and 232 of the Criminal Act / [4] Articles 231 and 234 of the Criminal Act

[2] Supreme Court Decision 79Do3034 delivered on April 22, 1980 (Gong1980, 12829) Supreme Court Decision 83Do2257 delivered on October 25, 1983 (Gong1983, 1791) / [3] Supreme Court Decision 90Do577 delivered on February 26, 199 (Gong191, 1119)

Defendant

Defendant

Law Firm Sejong, Attorneys Yellow-ho et al.

Seoul High Court Decision 2005No2164 delivered on March 17, 2006

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the ground of appeal on the forgery of private documents and the display of private documents

Since the subject to which the intent or concept expressed in a document prepared by the representative director of a corporation in the manner of representing his/her representative qualification belongs is a stock company that is not an individual representative director, the nominal owner of the document shall be deemed a stock company. Therefore, whether the act of preparing the document constitutes the above Article shall be determined depending on whether the originator has the authority to lawfully prepare the document in the name of the stock company, and it shall not be determined in accordance with whether the document was delegated or consented to the preparation of the document from the person indicated as the representative director (see Supreme Court Decision 74Do1684, Sept. 23, 197

Inasmuch as a legitimate representative director of a corporation has the authority to do all judicial or extra-judicial acts with respect to the business of the corporation, he/she does not fall under the category of preparation of qualification documents or the above Article. This also applies in cases where the content of the document was made for the purpose of promoting his/her own or a third party's interest by false or abusing his/her power of representation against the truth (see, e.g., Supreme Court Decisions 79Do3034, Apr. 22, 1980; 83Do2257, Oct. 25, 1983). However, even if a legitimate representative director of a corporation is a legitimate representative director, he/she is not allowed to comprehensively delegate his/her authority to perform the business of the corporation and make another person perform the business of the representative director. Thus, an act of preparing documents in the name of the non-authorized person, in principle, constitutes preparation of qualification documents or the above Article, and it constitutes an exception to preparing documents under the name of the corporation only where he/she has been delegated or consented to prepare documents under the name of the corporation (see Supreme Court Decision 267Do.

According to the facts established by the court below, the defendant purchased an officetel, etc. which is owned by the company from Hadong Co., Ltd. as part of the investment funds received from investors, and used the rest for other purposes. In order to submit the above investment funds to the investors favorable materials to be accused of fraud, etc., the defendant requested the non-indicted 1 to prepare a receipt and tax invoice stating that all of the above investment funds were received as an officetel purchase and construction cost, etc. At the time, the representative director of Song River Construction Co., Ltd. was the representative director at the time, and on the other hand, the non-indicted 1, who was engaged in the business of the representative director of the two companies with the comprehensive delegation from the non-indicted 2, the representative director at the time, who was entrusted by the non-indicted 2, the non-indicted 1, who was in charge of the above sales contract, arbitrarily stated that "the non-indicted 2" or the non-indicted 3, the representative director at the Song River Construction Co., Ltd. (the former representative director)", and submitted them to the police.

Examining the aforementioned facts in light of the legal principles as seen earlier, first of all, the Defendant and Nonindicted 1’s act of setting up a false receipt and tax invoice with the name of “Nonindicted 2” constitutes the act of forging the receipt and tax invoice under the name of the corporation. Even though Nonindicted 1, a legitimate representative director of the corporation, performed the business of the said corporation’s representative director upon delegation by Nonindicted 2, a legitimate representative director of the corporation, Nonindicted 2’s comprehensive delegation of authority cannot be permitted in principle. Furthermore, it is difficult to readily conclude that Nonindicted 2’s act of preparing a false receipt and tax invoice with the contents unfavorable to the corporation for the Defendant, belongs to the extent that the representative director comprehensively delegated the representative director’s authority. Accordingly, the Defendant and Nonindicted 1’s act of preparing and using a false receipt and tax invoice under the name of the corporation, without the individual, specific delegation or approval of Nonindicted 2, constitutes the act of preparing and using a document under the name of the corporation, and constitutes the crime of forging documents and the crime of uttering of the said investigation documents.

However, the Defendant and Nonindicted Party 1’s act of setting up a false content receipt and tax invoice by indicating “Nonindicted 3” does not constitute an act of forging receipts and tax invoices in the name of Song River Construction Co., Ltd. In principle, if Nonindicted Party 1 is a lawful representative director of Song River Construction Co., Ltd., and the authority thereof is restricted, it does not constitute the act of drawing up a document under the name of Song River Construction Co., Ltd., unless there are special circumstances where such authority is restricted. This does not change depending on whether the content of the document is false, such as indicating the already retired representative director as the representative director, whether the document was drawn up for the purpose of promoting one’s own or a third party’s interest, or whether the document was delegated or approved by Nonindicted 3, who was indicated as the representative director. Therefore, even if the Defendant and Nonindicted Party 1 did not consent to drawing up and using a receipt and tax invoice in the name of Song River Construction Co., Ltd., Ltd., the act of drawing up and using the document under the name of forging River Construction Co., Ltd., without authority.

Ultimately, the part of the judgment below that recognized the liability for the crime of forging private documents and the uttering of the falsified Private Document in relation to the preparation and use of receipts and tax invoices as “non-indicted 2,” and the part that recognized the liability for the crime of forging private documents and the uttering of the falsified Private Document, is justifiable, and there is no illegality by misapprehending the legal principles as to the comparison of private documents, and thus, the Defendant’s ground of appeal on this part is not accepted. However, the part that recognized the liability for the crime of forging private documents and the uttering of the falsified Private Document cannot be maintained as it is in violation of the law of misunderstanding the legal principles as to the forgery of

2. As to the ground of appeal on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

The deception, which is a requirement for fraud, refers to all affirmative or passive acts that have to abide by each other in the wide range of property transaction relations and that breach the duty of good faith.

In the same purport, it is just to recognize the defendant's liability for violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) on the grounds of various circumstances as decided by the court below, and there is no violation of law such as misunderstanding of legal principles as to the elements of fraud or violation of law as to the preparation and evaluation of evidence, as otherwise alleged in the ground of

3. Conclusion

Therefore, among the judgment of the court below, the receipts that constitute “non-indicted 3, the representative director of Song River Construction Co., Ltd.,” and the parts concerning the forgery of private documents and the uttering of falsified documents related to the preparation and exercise of tax invoices cannot be reversed. Since the court below recognized the whole facts charged as guilty and sentenced to a single sentence, the judgment below cannot be reversed in its entirety, and the judgment below is entirely reversed and the case is remanded to the court below for a new trial and determination, and it is so decided as per Disposition by the assent

Justices Park Si-hwan (Presiding Justice)