Defendant 1 and three others

Defendants

Maternal Exchange

Attorney Park Yong-young

Busan District Court Decision 2009No771 Decided May 19, 2009

The judgment of the court below is reversed.

Defendants shall be punished by each fine of KRW 3,000,000.

If the Defendants did not pay each of the above fines, each of the above fines of 60,000 won was converted into one day, the Defendants shall be confined in the old house.

An order to pay an amount equivalent to each of the above fines shall be issued.

1. Summary of grounds for appeal;

A. Error of mistake

The Defendants, while operating Nonindicted Co. 3, who entered into a contract with the Korea Rural Community & Agricultural Corporation in the name of KRW 350 million, lent the name of Nonindicted Co. 1 to KRW 350,000,000,000, which was ordered by the Korea Rural Community & Agricultural Corporation's Housing Site doctor, for sand and miscellaneous removal projects (hereinafter "the project in this case"). As for the loan certificate on November 29, 2006, Defendants 2, 3, and 4 prepared a loan certificate with the name of Nonindicted Co. 1, who was comprehensively approved to use in accordance with the name lending with the Nonindicted Co. 1, and thus, there is room to view that the above Defendants did not have any intention to forge or exercise the private document, or that there is no error in the misapprehension of the above loan certificate within the scope of the implied consent or constructive consent of Nonindicted Co. 1, 206, since they did not have any influence on the Defendant’s manager of the above corporation in the name of the said corporation.

B. Unreasonable sentencing

Even if the defendant was found guilty against the defendant, the non-indicted 4, who is the holder of each of the loans in this case, did not file any civil claim against the non-indicted 1 corporation, and the non-indicted 4 knew that the defendant was running the business in this case by lending the name of the non-indicted 1 corporation, and did not want to be punished against the defendants, and the defendants paid interest of KRW 1.2 million as of the borrowed amount from November 20, 2006 to July 2007 each month. The defendants signed and sealed the seal of the employee of the non-indicted 1 corporation in each of the loans in this case by the non-indicted 1 corporation was known to be delegated with the comprehensive authority for the reduction of the employees of the corporation by the non-indicted 1 corporation. Thus, the sentencing of the court below against the defendants (6 months of imprisonment and 2 years of suspended execution) is unfair.

2. Determination

A. Judgment on the assertion of mistake of fact

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 with no authority, in principle, by a person who is delegated by the representative director to comprehensively exercise his/her authority, constitutes an act of preparing documents in the name of a corporation without authority, and constitutes an act of preparing qualification documents or an act of preparing documents in the name of a corporation, and exceptionally, only when he/she has been delegated or consented to the preparation of documents in the name of a corporation individually and specifically (see Supreme Court Decision 2006Do201

In light of the circumstances acknowledged by the lower court and the lower court’s judgment, ① Nonindicted Co. 1’s investigation agency and legal statement that was the de facto representative of Nonindicted Co. 1 and Nonindicted Co. 2’s construction work, Nonindicted Co. 1 and Nonindicted Co. 2, the Defendants, who were in the name of Nonindicted Co. 1 and Nonindicted Co. 4, agreed to the effect that Nonindicted Co. 1 and Nonindicted Co. 2 were in the name of Nonindicted Co. 1 and Nonindicted Co. 4’s name, and that Nonindicted Co. 1 and Nonindicted Co. 2 were in the name of Nonindicted Co. 1 and were in the name of Nonindicted Co. 2’s name, and that Nonindicted Co. 1 and Nonindicted Co. 4 were not in the name of Nonindicted Co. 1 and were in the name of Nonindicted Co. 1 and that they were in the name of Nonindicted Co. 4 and were in the name of Nonindicted Co. 1 and that they were in the name of Nonindicted Co. 1 and were in the name of Nonindicted Co. 6’s name. 300 million won.

Therefore, the Defendants’ assertion that there was no intention or acceptance with respect to each of the instant crimes is without merit.

B. Determination on the assertion of unfair sentencing

On the other hand, each of the crimes of this case is deemed to have been committed by the Defendants under the name of Nonindicted Co. 1 without authority by forging and using each of the loans of this case in the name of Nonindicted Co. 1, thereby causing the risk of incurring KRW 200 million to Nonindicted Co. 1. However, the Defendants could only be deemed to have committed each of the crimes of this case without properly recognizing the illegality in the course of carrying out the business of this case by borrowing the name from Nonindicted Co. 1, and Nonindicted Co. 4, who received each of the loans of this case, was well aware that the Defendants were carrying out the business of this case by borrowing the name of Nonindicted Co. 1, and actually, did not claim civil liability related to the loan of this case against Nonindicted Co. 1. In addition, when the Defendants guilty of each of the crimes of this case, Nonindicted Co. 1 may be exempted from liability for repayment related to each of the loans of this case, and Defendant 1, 3, and 4 did not have any history of criminal punishment for each of the crimes of this case, and the circumstances of this case’s first and following punishment.

3. Conclusion

Therefore, since the defendants' appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the following judgment is rendered again after pleading.

The summary of the facts constituting an offense and evidence recognized by this court is the same as that of the judgment below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

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

Articles 231, 30 (Influence of Private Document, Selection of Fine), 234, 231, and 30 (Influence of Exercising Private Document, Selection of Fine) of each Criminal Act

1. Aggravation for concurrent crimes;

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

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Code

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judges Park fixed-chul (Presiding Judge)