Defendant 1 and three others

Prosecutor

Earbs

Attorney Park Tae-ho

Daegu District Court Decision 2006Ra4111 Decided December 28, 2006

The prosecutor's appeal is dismissed.

1. Summary of the grounds for appeal (misunderstanding of legal principles or factual errors);

Defendant 2, despite the fact that Nonindicted 1 and 2 granted the right of representation to purchase two parcels of land (hereinafter “instant land”) in Seoyang-gu, Seoyang-gu, Seoyang-si (each lot number omitted), Sinsan-si (hereinafter “the instant land”), Defendant 2 drafted a private document by drawing up a real estate sales contract with a price of KRW 2.5 million (hereinafter “instant sales contract”) different from the actual contents of the sales contract with respect to the instant land, in which the scope of the right of representation was first set up, and prepared a private document with a capacity of agent differently from the actual contents of the sales contract, and the rest of the Defendants participated in it, the Defendants shall be punished as a crime of preparing a private document. Nevertheless, the lower court determined that Defendant 2 prepared the instant sales contract within the scope of authority delegated by Nonindicted 1, etc., and sentenced Defendant 2 not guilty of all the Defendants. In so doing, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine that affected the conclusion of the judgment by misapprehending the legal doctrine on preparing a

2. Determination on the grounds for the above appeal

A. According to the evidence duly examined and adopted by the court below, Defendant 2 delegated the authority to purchase the instant land owned by Defendant 1 from Nonindicted 1 and 2 within the limit of 3.5 million won. Accordingly, Defendant 2 entered into a sales contract with Defendant 1, the representative of the above sentence with Defendant 1 with the purchase price of KRW 3.5 million. Nevertheless, the Defendants conspired to the above purchase price to Nonindicted 1, etc. and the above sentence to the purchaser KRW 2.5 million, and the difference between Defendant 1, etc. was 50 million, and Defendant 2, etc. was 50 million in advance as the purchase price was 3.5 million won in advance, and Defendant 1, etc. also prepared the sales contract of this case in addition to the sales contract of KRW 3.55 million in advance.

B. Whether the document forgery constitutes a crime is determined by the form of whether the document is copied with the name of another person. Whether the document is true or not, except where there is a special penal provision, there is no complaint as to the establishment of the crime. Thus, in a case where the representative or agent of another person has the authority to prepare a document by using the name of the representative or the name of the representative or by using the name of the principal directly, and where the representative or agent of another person has the authority to prepare a document by abusing his/her position, it does not constitute a crime of forging a document even if he/she has abused his/her position and prepares it with the intent of seeking the benefit of himself/herself or a third person (see Supreme Court Decision 83Do332, Apr. 1

C. As seen in the above facts, Defendant 2, as long as the right to purchase the instant land from Nonindicted Party 1, etc., the purchaser, etc. within the extent of KRW 350 million, has been granted the right to purchase the instant land or prepare a sales contract within the extent of the above amount. Even if the actual purchase amount is KRW 3.5 million, even if the actual purchase amount is KRW 3.5 million, it cannot be said that he prepared a false sales contract with the intent to gather another's qualification and make a document. Further, Defendant 2, the buyer, and Defendant 1, the above sentence, prepared the sales contract of this case for the purpose of pursuing their own interest, such as taking part of the purchase price, and then using it as a means of embezzlement or embezzlement, it is reasonable to view that there is no error of misapprehending the legal principles as to the qualification of the prosecutor for the crime of fraud or embezzlement, as otherwise alleged in the judgment below.

3. Judgment on the ancillary charges added at the trial room

A. Meanwhile, the prosecutor, while maintaining the facts charged in the preparation of a qualification-based private document against the Defendants in the first instance, added the charges of “as if the defendants conspired with each other, sell the land of this case owned by Defendant 1 to Nonindicted 1 and 2 in KRW 250,000,00,000 to Nonindicted 1 and 2,000,000, without any authority, in order to deceive the above sentence, he made a request for changes in the indictment to the effect that the name of the crime is “facing a private document” and the applicable provisions are “Article 231 of the Criminal Act” to the effect that this part is subject to a trial by permitting this decision, this paper examines the facts charged in the second instance.

B. First of all, in the indication column of the purchaser of the instant sales contract (the investigation record No. 88 pages), it is stated that “1......., in the name of the purchaser, Non-Indicted 1 and Non-Indicted 2, the vice-party 2, the vice-party 2, the vice-party 2, the vice-party 2, the vice-party 2, the vice-party 2, the above purchaser’s agent for the above purchaser, Young-gu, Young-gu, the vice-gu, the vice-party 2, the vice-party 2, and the defendant 2, the vice-party 2, the vice-party 1 and the defendant 2, the vice-party 2, who is the principal, cannot be deemed to be the document, and even if his agent's name is copied, even if the preparation of the master-party document under Article 232 of the Criminal Act is established, regardless of the existence of the crime of preparing the master-party document, which is the primary charge, as seen earlier, there is no further proof of the crime.

4. Conclusion

Therefore, the prosecutor's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, and there is no proof of a crime. Thus, as long as the judgment of the court below which acquitted the defendant as to the primary facts charged (preparation of private documents) in the same relation as the above preliminary facts charged (preparation of private documents) is maintained, it is so decided as per Disposition that the prosecutor not guilty is not guilty.

Judges Kim Tae-cheon (Presiding Judge)