Defendant

Prosecutor

Maritime Affairs and Fisheries.

Attorney Han-nam (National Assembly)

Chuncheon District Court Decision 2007Kadan558 Decided January 8, 2008

The prosecutor's appeal is dismissed.

1. Summary of the facts charged and the judgment of the court below

The summary of the facts charged of this case is as follows: (a) around November 25, 2006, the defendant made a copy or image of the application for joining Nonindicted Party 1’s mobile phone which he had forged in advance; and (b) sent the application to Nonindicted Party 2 as if he had been genuinely formed by means of e-mail as if he had been aware of the forged facts, and (c) the court below acquitted the above facts charged on the ground that, in case of imageing after a copy of the application for joining a forged mobile phone, it cannot be said that the image is the forged document itself or that it cannot be said that it was a copy.

2. Summary of grounds for appeal (legal scenarios and unreasonable sentencing)

Since the value of protecting social credibility in image documents (electronic documents) created by cans using computer cans is high, and the creation of image documents is creating a condition that enables people to recognize the shape and content of the original document by reproducing the appearance and form of the original document. Thus, image documents created by cans fall under “duplicing documents” as referred to in Article 237-2 of the Criminal Act, and forgery and use of such documents constitutes crime of forgery and use.

Even if an image document does not constitute a document concerning a document under the Criminal Act, the term of uttering in the crime of uttering, such as a forged document, is used in accordance with the effective method of the document, and there is no special restriction on the method of uttering. Thus, if a forged private document itself exists as in the instant case, the act of sending it by e-mail is a single method of exercising the above investigation document. However, the lower court erred by misapprehending the legal doctrine on the crime of uttering of the above investigation document, thereby having committed an error of not guilty of the facts charged in the instant case, and in light of the above circumstances, the lower court’s punishment (one year of imprisonment and two years of suspended execution) is too unab

3. Determination

The term "documents" in the crime related to documents under the Criminal Code means objects indicating ideas or ideas by means of letters or virtual signals, and the expression of intent as a conceptual element must be fixed to objects and continuous in possession of such objects.

In this case, an image created by a forged mobile phone subscription application can only be deemed to have been continuously fixed on the screen when a program is implemented to see an image file, which is an electronic record, since it cannot be deemed to have been continuously fixed on the screen, since an image on the screen cannot be deemed to have been a document, and it cannot be deemed to have been an exercise of a forged document by transmitting such image to another person as a computer monitor.

In addition, the event needs to be related to the forged document itself (a copy reproduced by a mechanical method). In this case, the transmission and presentation to Nonindicted Party 2 is only the image, but not the mobile phone subscription application itself, and it cannot be viewed as a single method to exercise the above-mentioned investigation document which has already existed in the facts charged of this case, and it is also obvious in light of the principle of no punishment without law and the principle of no interpretation derived from this.

Therefore, the judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles, and considering various circumstances shown in the records of this case, it is recognized that the sentence imposed by the court below is reasonable, and the prosecutor's assertion is without merit.

4. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since the prosecutor's appeal is without merit. It is so decided as per Disposition.

Judges Jeong Sung-tae (Presiding Judge) Doctrine to Kim Jong-sung