[1] Whether a “inspection report” prepared by an external specialized institution and approved by the head of a local government or a contracting officer constitutes an official document (affirmative)

[2] In a case where Gap and a public official in charge of supervising a company's supervision of a self plant plant development project conspired to prepare a false completion inspection report, and then keep the report at the office with the approval of the public official attached to the completion inspection report, the case holding that the above "use inspection report" constitutes an official document

[1] A public prosecutor with regard to the completion of a contract to which a local government is a party shall delegate the authority of the head of the local government or the contracting officer to a specialized institution, which is subject to the authority of the head of the local government or the contracting officer, and whose duties are not different. However, in this case, the head of the local government or contracting officer shall perform his duties by obtaining a written notification of the result of the inspection from the specialized institution and obtaining it from the specialized institution entrusted with the inspection and confirming it and approving it, if the head of the local government or contracting officer approves it in the inspection report, such approved inspection report constitutes an official document prepared by the public official within his authority

[2] In a case where Gap, the responsible supervisor of the supervising company of the self plant development project, conspired with the public official in charge of supervising this project, prepared a false completion inspection report in collusion with Eul and submitted it to Eul to obtain approval from the public official and kept it in the office, the case holding that the above "certificate of completion inspection" constitutes an official document

[1] Article 227 of the Criminal Act, Article 17 (1) and (2) of the Act on Contracts to which a Local Government is a Party, Article 67 of the Enforcement Rule of the Act on Contracts to which a Local Government is a Party / [2] Articles 33, 34 (1), 227, and 229 of the Criminal Act, Article 17 (1) and (2) of the Act on Contracts to which a Local Government is a Party, Article 67 of the Enforcement Rule of the Act on Contracts to which a Local Government is a Party

[2] Supreme Court Decision 91Do2837 delivered on January 17, 1992 (Gong1992, 948)

Defendant

Prosecutor

Attorney Kwon Young-hoon

Suwon District Court Decision 2009No4573 Decided December 24, 2009

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

We examine the grounds of appeal.

1. The summary of the facts charged of this case is as follows: (a) the Defendant, a responsible supervisor of the Agricultural Technology Center (hereinafter “Agricultural Technology Center”) at the supervision chain of the Gesung Plant Development Corporation (hereinafter “the instant construction”), in collusion with Nonindicted 2 in charge of the public official in charge of the Agricultural Technology Center (hereinafter “Agricultural Technology Center”) when supervising the instant construction, prepared a false completion inspection report (hereinafter “the instant completion inspection report”) as if the construction was completed, and submitted it to Nonindicted 2, along with a written draft report (hereinafter “the instant inspection report”) to report the completion inspection in the name of Nonindicted 1 Stock Company, and Nonindicted 2 received it and signed it and kept it in the office with the approval of the director in charge of the Agricultural Technology Center and the warden of the Agricultural Technology Center, thereby preparing and exercising the instant inspection report, which is an official document prepared in connection with the supervision affairs, in collusion with Nonindicted 2.

2. The first instance court found the Defendant not guilty of the instant completion inspection protocol on the ground that only the supervisors belonging to Nonindicted Co. 1, who are not public officials, are the authors, and there is no name of Nonindicted Co. 2 who is public official, and Nonindicted Co. 2 signed the inspection report of this case attached with the instant completion inspection protocol, but merely because it is difficult to evaluate Nonindicted Co. 2 as the maker of the instant completion inspection protocol due to such circumstance, it is difficult to judge Nonindicted Co. 2 as the maker of the instant completion inspection protocol, and the lower court upheld it on the ground that the first instance court’s measures

3. However, we cannot accept the judgment of the court below for the following reasons.

According to Article 17(1) and (2) of the Act on Contracts to Which a Local Government Is a Party, and Article 67 of the Enforcement Rule of the same Act, the head of a local government or a contracting officer shall directly inspect the contract when the performance of all or part of a contract is completed by a party to a contract, or entrust the inspection to a public official, etc. under his/her control. In cases of a contract for construction works subject to responsible supervision or a contract requiring specialized knowledge or technology, a person who conducts an inspection shall prepare a protocol of inspection, and in cases where the head of a local government or contracting officer has a specialized institution conduct an inspection, the head of a local government or contracting officer shall prepare a protocol of inspection, and in cases where the head of a local government or contracting officer has a specialized institution conduct an inspection, he/she shall be notified of the result in writing and delegated the inspection to a specialized institution. In light of the above provisions, the public prosecutor on the completion of a contract to which a local government is a Party to a local government does not change his/her duties. However, in this case, if the head of a local government or contracting officer completes the inspection report and approves it as an inspection report within the public document prepared document.

According to the evidence duly adopted and examined, with respect to the development project of the self plant resources of the Gesung City, the Korea Agricultural Technology Center established the contract for the construction of the instant construction project with the Incheon Local Government Procurement Service (hereinafter “the instant construction contract”), entered into a technical service agreement with Nonindicted Co. 1 on full responsibility supervision (hereinafter “the instant supervision agreement”), and takes charge of the performance of the following contracts. Upon receipt of the inspection from the ○○ integrated construction, the Korea Agricultural Technology Center entrusted the completion inspection to the Nonindicted Co. 1 pursuant to the instant supervision agreement. However, upon receipt of the inspection from the ○○ integrated construction, Nonindicted Co. 1 was entrusted the completion inspection to the Nonindicted Co. 1. The Defendant and the public official belonging to the Korea Agricultural Technology Center, who was in charge of the completion inspection with the public official belonging to the said Nonindicted Co. 1, who was present at the completion inspection, was found to have completed the completion inspection without being aware that the completion inspection was not completed. Accordingly, as if the Defendant completed the construction, the report was prepared with a false report stating the completion inspection report and the completion inspection report in the previous inspection report to the inspection report.

Examining these facts in light of the legal principles as seen earlier and the relevant provisions of the above law, the Agricultural Technology Center concluded the instant supervision agreement with Nonindicted Co. 1, a specialized institution, to ensure the proper implementation thereof, and delegated the first inspection of completion, which is the duties under its jurisdiction, to Nonindicted Co. 1, and accordingly, approved the result of the inspection of completion prepared and reported by Nonindicted Co. 1, a written report of completion of the instant inspection by the competent authority, through the approval of the warden, who is the discretionary authority (the foregoing approval was made on the inspection report of this case in the form of the instant inspection report, but in substance, it shall be deemed that the instant inspection report of completion containing the result of completion inspection as an accompanying document), and ultimately, the instant inspection report of completion approved as above constitutes an official document prepared by the president of the Agricultural Technology Center within its authority.

In addition, in the case of the instant completion inspection protocol, which is an official document with the above approval, only the director of the Agricultural Technology Center having authority to prepare the documents in the course of performing his duties, and the public official Nonindicted 2, who is in the position to assist the preparation of false public documents, is not the subject of the crime of preparation of false public documents. However, Nonindicted 2, in collusion with the defendant, approved the completion inspection protocol of this case in collusion with the defendant to the effect that the person in charge of having participated in the completion inspection, who is the person who has participated in the completion inspection, confirms the authenticity thereof, and submitted it to the warden who is not aware of the false fact and approved it, thereby completing the completion inspection protocol of this case as a false public document through the director in charge, thereby having the head of the division completed it as an indirect crime of preparation of false public documents, and regardless of whether the defendant was a public official's status, shall not be exempted from

Meanwhile, in light of the overall contents of the instant indictment, the prosecutor appears to have prosecuted the Defendant as his accomplice on the premise that Nonindicted 2, who is a public official, is not the above indirect offender but the principal offender who directly committed the crime. However, the instant indictment is not only explicitly stated in the objective facts of the indirect offender form, but also subjective facts that the president of the Agricultural Technology Center had knowledge of its falsity. Since the indirect offender is punished for the same punishment as the principal offender or more mitigated punishment, it is difficult to deem that there is a concern that the said indirect offender’s co-offender without the amendment process would have a substantial disadvantage in exercising the Defendant’s right to defense.

Nevertheless, the lower court upheld the first instance judgment that acquitted the Defendant on the ground that the instant completion inspection protocol does not constitute official documents. In so doing, it erred by misapprehending the legal doctrine on official documents in the crime of preparing false official documents, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)