Defendant

Both parties

In new forms (prosecutions) and best practices (public trial)

Attorney Park Jin-jin, Counsel for the defendant-appellant

Seoul Central District Court Decision 2015 High Court Decision 4438 Decided August 17, 2016

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of grounds for appeal;

A. Defendant

(i)misunderstanding of facts or misunderstanding of legal principles

㈎ 피고인은 공소외 1이 학교법인 ○○학원 2014년도 제1차 이사회 회의록(이하 ‘이 사건 회의록’이라고 한다)에 서명 거부 사유를 쓰겠다고 하여 구체적인 내용을 확인하지 않고 공소외 1에게 일단 작성해 보라고 하였을 뿐이다. 이후 피고인은 공소외 1이 기재한 문구[이사장의 이사회 내용 사전유출(3/28)로 인한 책임을 물어 회의록 서명을 거부합니다. 공소외 1(서명), 이하 ‘이 사건 문구’라고 한다]를 확인하여 보니 이 사건 회의록에 기재될 수 없는 내용이라고 판단되어 공소외 1에게 이 사건 문구를 삭제하겠다고 통보한 뒤 이를 삭제하였다. 따라서 이 사건 문구는 이사장으로서 이 사건 회의록의 작성권한자인 피고인의 구체적이고 명시적인 승낙 없이 기재된 것에 불과하여 그 자체가 위 회의록의 변조에 해당하므로, 피고인이 이러한 변조 부분을 삭제한 것은 사문서변조에 해당하지 아니한다.

㈏ 이 사건 회의록은 수인의 작성명의인이 있는 연명문서이다. 따라서 공소외 1이 이 사건 문구를 기재하기 위해서는 이사장인 피고인의 동의 또는 승낙을 받는 것만으로는 부족하고, 당시 이미 위 회의록에 관한 간서명 및 서명을 완료한 이사들 및 감사 전원의 동의 또는 승낙을 받아야 함에도, 그러한 동의 또는 승낙 없이 이 사건 문구를 기재하였다. 따라서 이 사건 문구의 기재 자체가 이 사건 회의록의 변조에 해당하므로, 피고인이 이를 삭제한 것은 사문서변조에 해당하지 아니한다.

㈐ 피고인이 이 사건 문구를 삭제할 당시 이 사건 회의록에 이사장인 피고인의 간서명 및 서명은 이루어지지 아니한 상태였다. 따라서 이 사건 회의록은 미완성 상태였고, 피고인의 이 사건 문구 삭제 행위는 아직 작성 중인 미완성 문서의 내용을 작성권한자가 변경한 것에 불과하여 사문서변조에 해당하지 아니한다.

㈑ 사립학교법 제18조의2 제1항 제6호 에는 이사회가 회의록에 기재할 사항으로 ‘그 밖에 이사장이 필요하다고 인정하는 사항’을 규정하고 있는바, 학교법인 ○○학원의 이사장인 피고인은 이 사건 회의록의 임의적 기재사항에 관하여 ‘작성권한이 있는 자’라고 할 것이다. 결국 임의적 기재사항의 작성권한자인 피고인이 이 사건 문구의 내용이 이사회의 내용과 관련이 없고 근거 없는 허위 주장에 불과하여 기재될 필요가 없다고 판단하여 이를 삭제한 것은, 작성 권한 있는 자의 변경행위로서 사문서의 변조에 해당하지 않는다.

㈒ 피고인의 이 사건 문구 삭제로 인하여 이 사건 회의록의 내용이나 효력에 새로운 증명력이 생긴 바 없으므로(더욱이 위 회의록은 공소외 1의 간서명 및 서명이 없는 상태 그대로 공개되었는바, 따라서 위 문구가 삭제되었더라도 공소외 1이 간서명 및 서명을 거부한 사실은 위 회의록 자체에 그대로 남겨져 증명되고 있다), 위와 같은 피고인의 행위는 사문서변조죄에 있어서 ‘변경’에 해당하지 아니한다.

【Unjustifiable sentencing

The punishment of the first instance (one million won of fine) is too unreasonable.

(b) An inspection;

It is unfair that the first instance sentence is too unfeasible.

2. Determination:

A. Summary of the facts charged

(i) Alteration of private documents;

On April 24, 2014, the Defendant: (a) at the office of the president of ○○ Private Teaching Institutes in Seongbuk-gu Seoul ( Address omitted); (b) using modified tapes, the first director’s signature of the first director’s minutes of the board of directors in 2014, the Defendant was unable to sign the minutes by asking for liability due to prior leakage of the board of directors (3/28) of the board of directors’ contents at the board of directors; (c) Nonindicted 1’s signature on the following part; and (d) Nonindicted 1’s signature on Nonindicted 1’s name.

Accordingly, the Defendant modified the first meeting minutes of the board of directors in 2014 under the name of ○○ Private Teaching Institute president and directors, a private document of fact-finding for the purpose of uttering.

Shebly altered private documents

On April 25, 2014, at the same place, the Defendant: (a) made an image of the minutes of the board of directors altered under paragraph (1) using computers and scanners installed therein; and (b) posted them on the website of the school foundation as if they were duly formed documents; and (c) made them available for perusal by a number of name-free persons who are aware of such alteration.

Accordingly, the Defendant exercised the first meeting minutes of the board of directors in 2014 in the name of ○○ Private Teaching Institute president and directors, a private document concerning the altered certification of facts.

B. First Instance Judgment

The first instance court, even if based on the defendant's statement, allowed non-indicted 1 to write down the grounds for refusing to sign the minutes of this case, and found the defendant guilty of all the facts charged of this case by considering the evidence in its holding, including the statement of non-indicted 1 and non-indicted 4, corresponding thereto.

C. Judgment of the appellate court

(i) Relevant legal principles

The crime of forging private documents is established when there is a risk of undermining the public credibility of a person without authority to write new probative value by altering the content of documents in the name of another person to the extent that it does not harm the identity of the person with no authority. In addition, the crime of forging private documents is established when the form and appearance to the extent that the nominal owner can regard it as a document, which is sufficient for the general public to write it in the real private document of the nominal owner. It does not necessarily require the signature or seal of the nominal owner. However, whether it is sufficient for the general public to write it in the real private document of the nominal owner should be determined by comprehensively considering not only the form and appearance of the document, but also various circumstances such as the preparation process, type, and content of the document, and function of the document in the ordinary transaction (see Supreme Court Decision 95Do2221, Dec. 26, 1997). 208.

See Specific Judgment

㈎ 인정사실

According to the evidence duly adopted and investigated by the first instance court and the appellate court, the following facts are recognized:

① On March 26, 2014, the Defendant, as a director of the school foundation ○○ Private Teaching Institute, held the first meeting of the board of directors in 2014 (hereinafter “instant meeting”). At the time, the Defendant, Nonindicted 1, Nonindicted 2, Nonindicted 4, Nonindicted 3, and Nonindicted 6, and Nonindicted 7, except Nonindicted 5, among the directors, were present at the instant meeting.

② At the time of the instant meeting, the matters concerning the appointment and dismissal of teachers and the approval of a new teachers’ recruitment plan were postponed due to differences among the directors. In this regard, on March 28, 2014, the Defendant posted on the website of the ○○ Private Teaching Institute a letter “a position on the handling of teachers’ personnel agenda.”

(3) On the other hand, the chief director prepared a draft of the meeting minutes of the board of directors based on the recording made at the time of the progress of the board of directors of the school foundation's ○○ driving school, and prepared a final copy through the hearing of the directors present and the auditor and the procedure of gathering opinions, and completed the preparation of the meeting minutes of the board of directors with signatures and signatures from the directors present at the meeting and all auditors (as such, at the bottom of each page of the meeting minutes of the board of directors, there is a column for the joint signature between the members present at the meeting and the auditor, and at the last page of the meeting minutes of the board of directors, the names of the chief director, directors

④ After two weeks to three weeks from the instant meeting, the Defendant prepared the instant meeting minutes through the aforementioned procedure and requested the attending directors and auditors to sign and affix their signatures. Accordingly, Nonindicted 3, Nonindicted 6, and Nonindicted 4, and Nonindicted 7, the auditor, completed the joint signature and signature on the instant meeting minutes, but the director Nonindicted 2 and Nonindicted 1 refused the joint signature and signature on the said minutes.

⑤ On April 24, 2014, the Defendant heard Nonindicted 1’s statement that “the Defendant refused to sign the instant minutes because the Defendant had disclosed the contents of the instant minutes in advance,” from Nonindicted 1 among the directors, and made Nonindicted 1 enter the reasons therefor in the instant minutes. Accordingly, Nonindicted 1 entered the instant text in the margin under the bottom of the initial page’s blank signature column among the instant minutes. However, at the time of the instant minutes, the Defendant and Nonindicted 1 had already completed Nonindicted 3, 6, and 4, and Nonindicted 7’s consent or consent on the entry of the instant text from Nonindicted 3, 6, and Nonindicted 7 (after that, Nonindicted 2, from among the directors present, did not sign or affix any signature to the instant minutes).

④ On April 24, 2014, the Defendant notified Nonindicted 1 that he would delete the instant phrase, and then deleted the said phrase from the instant minutes using the revised tape, and posted the minutes containing the deleted phrase on or around April 25, 2014 on the website of the educational foundation ○○ Private Teaching Institute.

㈏ 판단

Comprehensively taking account of the following circumstances acknowledged in light of the above legal principles, the evidence submitted by the prosecution alone is difficult to recognize that the defendant altered and exercised the minutes of this case in the name of the chief director and directors of ○○ Private Teaching Institutes and directors by deleting the phrases of this case at each time and place indicated in the facts charged. There is no other evidence to acknowledge this. Thus, the facts charged of this case should be pronounced not guilty on the ground that there is no evidence to prove a crime. Thus, the first instance court which found the defendant guilty of the facts charged of this case was erroneous by misapprehending the facts or misapprehending the legal principles, thereby affecting the conclusion

① The charged facts of this case include only the name holder of the minutes of this case “○○ Private Teaching Institute, the president and directors of the school foundation.” The Defendant, directors, Nonindicted 5, Nonindicted 2, Nonindicted 4, Nonindicted 3, and Nonindicted 6, the object of the alteration of private documents is documents in the name of another person, not the Defendant, and Nonindicted 5, the director of the school foundation was not present at the meeting of this case. As such, Nonindicted 1, Nonindicted 2, Nonindicted 4, Nonindicted 3, and Nonindicted 6, among the directors of the ○ Private Teaching Institute of the school foundation, may become the title holder of the minutes of this case as indicated in the charged facts of this case. In addition, comprehensively taking into account the relevant provisions of the Private School Act and the actual procedures for the preparation of the minutes of this case, the above minutes of this case shall be duly established for each director, who is a title holder, at the time of completing the signature and signature of the minutes of this case.

② First of all, we examine whether the minutes of this case were the minutes of the board of directors which had been genuinely established at the time of deletion of the phrase of this case. However, the phrase of this case was written in the margin under the bottom of the cross signature column at the bottom of the first page of the minutes of this case, and the general public does not seem to have any form and appearance sufficient to mislead Nonindicted 1 to be the minutes of the board of directors which were genuinely prepared by the above phrase. The above phrase of this case includes Nonindicted 1’s signature. However, it is merely a signature on the statement where the Defendant asked the Defendant to refuse to sign the above minutes by taking responsibility due to the prior leakage of the contents of the board of directors, and it cannot be deemed as a signature, unless it was confirmed the contents of the above minutes, and it cannot be deemed as a signature with the purport that there was no objection. In light of the circumstances and purpose of the above phrase of this case as seen earlier, it cannot be deemed that the entry of the above phrase of this case was made in the name of the above defendant, as the object of the alteration of the minutes of this case.

③ In addition, from among the directors present at the instant meeting, Nonindicted Party 2 did not sign and affix his signature to the said meeting minutes even after the time of entry and deletion of the phrases of this case. Accordingly, the minutes of this case do not constitute the minutes of the completed board of directors consisting of Nonindicted Party 2, who could be the object of alteration of the private document, and the deletion of the phrases of this case by the Defendant cannot be deemed as the alteration of the said minutes in the name of Nonindicted Party 2.

④ Meanwhile, at the time of entry of the text of this case, Nonindicted 3, Nonindicted 4, and Nonindicted 6 had already completed their respective signatures and signatures on the minutes of this case at the time of entry of the text of this case. Accordingly, the above minutes in the name of Nonindicted 3, Nonindicted 4, and Nonindicted 6 had already been genuinely established. After the minutes of this case were duly established in the name of Nonindicted 3, Nonindicted 4, and Nonindicted 6, even if the Defendant is the chief director, considering the nature of the minutes of the board of directors, it is not possible to revise the minutes at their discretion without the consent or consent of the above preparing person. Accordingly, the text of this case, without the consent or consent of Nonindicted 3, Nonindicted 4, and Nonindicted 6, which was written by Nonindicted 1 with only the consent or consent of the Defendant, does not include the contents of the minutes of this case in the name of Nonindicted 3, Nonindicted 3, 4, and Nonindicted 6. Ultimately, even if the Defendant arbitrarily deleted the text of this case, the deletion of the contents of this case does not constitute an alteration of a private document.

3. Conclusion

If so, the defendant's appeal is reasonable, the judgment of the court of first instance is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and the following decision is rendered after pleading.

1. Summary of the facts charged

The facts charged of this case are as stated in the above Section 2-A.

2. Determination

The facts charged in the instant case constitute a case where there is no evidence of crime as examined in the foregoing Section 2-C. Therefore, the Defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment is publicly announced pursuant to Article 58(2) of the Criminal Act. It is so decided as

Judges Cho Il-il (Presiding Judge)

(1) Article 18-2 (Preparation, Disclosure, etc. of Minutes) (1) The board of directors shall prepare the minutes stating the following matters: Provided, That where there are circumstances in which it is impracticable to prepare the minutes on the date of holding the board of directors, a meeting protocol recording the results of deliberation and resolution by agenda may be prepared: 1. The number of the executives and employees present on the 2.3. agenda items of the opening, suspension and adjournment of the meeting; 5. Voting number 6. Other matters deemed necessary by the chief director; 2. Other matters deemed necessary. The minutes and the meeting records: the minutes and the meeting records shall be signed and signed by the person in which all the officers present are able to know their names; and where there are two or more copies of the minutes or the meeting records, the board of directors shall sign and seal the minutes and the meeting records by the representative.