In cases where a driver of a motor vehicle, etc. is required to present a driver's license by a police officer pursuant to Article 92 (2) of the Road Traffic Act while driving the motor vehicle, whether the exercise under the specific usage of the driver's license would present the driver's license itself issued in accordance with the relevant Acts and subordinate statutes (affirmative)

The crime of unlawful uttering of official documents is established when a licensee and a person who does not have the right to use any official document or document prepared with specified purposes makes it fraudulent as if he/she had the right to use it, or when a person who has the right to use it exercises it unlawfully against a legitimate usage.

The legislative intent of the crime of unlawful uttering of official documents lies in protecting the public credibility, etc. of the official documents. If there is a risk of undermining the public credibility, etc. of the official documents, the crime shall be established, but if there is no such risk, the crime shall not be established.

The Road Traffic Act stipulates that a person who intends to drive a motor vehicle shall obtain a driver's license from the commissioner of a district police agency (Article 80(1)); that a driver's license shall take effect from the time he/she or his/her agent obtains a driver's license (Article 85(5)); and that the form, material, size, etc. of such driver's license shall be legal (Article 85(2) of the Road Traffic Act; Article 77(2) of the Enforcement Rule of the Road Traffic Act (attached Form

According to the Road Traffic Act, a person who has received a driver’s license shall carry the driver’s license when driving a motor vehicle (Article 92(1)), and the driver shall comply with the request when a police official requests the driver to present the driver’s license, etc. in order to ensure the traffic safety or to maintain the traffic order while driving a motor vehicle (Article 92(2)). The purpose of the Road Traffic Act lies in allowing police officials to promptly check the driver’s identity and the conditions of the license on the spot only with the appearance of the driver’s license issued in accordance with the Act and subordinate statutes for the traffic safety. If a police official presents an image file form of the driver’s license from a driver of a motor vehicle, etc., such purpose cannot be achieved unless he/she investigates and verifies the process of obtaining it, and it cannot be treated as having presented a legitimate driver’s license.

Therefore, the driver's license, which is stipulated as the object of presentation from Article 92 (2) of the Road Traffic Act, refers to the driver's license itself which can conceal or prove the existence of legitimate driver's license, and the form of image file does not correspond to this.

In light of the elements and legislative purport of the crime of unlawful uttering of official documents, and the contents and legislative purport of Article 92 of the Road Traffic Act, if a driver of a motor vehicle, etc. is requested to present a driver's license by a police officer pursuant to Article 92 (2) of the Road Traffic Act while driving the motor vehicle, the exercise of the driver's license pursuant to the specific usage method shall be deemed to have presented the driver's license itself issued in accordance with the relevant Acts and subordinate statutes. In such cases, the act of the driver of the motor vehicle, etc. to show to a police officer the image file taken by him/her, not the driver's license itself, but the mobile phone screen, etc., cannot be deemed to be an event in accordance with the usage method specified for the driver's license, and thus, it cannot be said that there

Article 230 of the Criminal Act, Articles 80 (1), 85 (2) and (5), and 92 of the Road Traffic Act, Article 77 (2) of the Enforcement Rule of the Road Traffic Act [Attached Form 55]

Supreme Court Decision 89Do1396 delivered on August 14, 1990 (Gong1990, 1985) Supreme Court Decision 98Do1701 delivered on August 21, 1998 (Gong1998Ha, 2371) Supreme Court Decision 99Do206 delivered on May 14, 199 (Gong199Sang, 1219)

Defendant

Defendant

Law Firm Barun (LLC, Attorney Lee Jae-chul, Counsel for defendant-appellant)

Seoul Southern District Court Decision 2017No2053 decided January 18, 2018

Of the judgment of the court of first instance, the part of the judgment of the court of first instance concerning the crimes listed in Tables 1 through 5 of the crimes committed in the annexed Table 1 to the judgment of the court of first instance and the crimes listed in Articles 2 through 5 of the judgment of the court of first instance shall be reversed, and this part of the case shall be remanded

The grounds of appeal are examined.

1. Summary of the unlawful uttering of official documents among the facts charged in the instant case

On April 26, 2017, at around 01:15, the Defendant was found to have driven (vehicle number omitted) 5 automobiles on the front of the ○○ Sports Center located in Seoul ( Address omitted), and the Defendant requested Nonindicted Party 1 to present a driver’s license by Nonindicted Party 1 while working for the Seoul △△ Police Station. Nonindicted Party 2, who was in charge of the Defendant’s cell phone, presented an image file recording Nonindicted Party 2’s driver’s license stored in the Defendant’s cell phone as the Defendant’s driver’s license.

2. Determination

A. The crime of unlawful uttering of official documents is established in a case where the licensee and the purpose of use are specified and the person who does not have the right to use the official document or the official document which is prepared with a specific purpose, uses it for an improper purpose, or exercises it unlawfully in violation of legitimate usage even though the person who has the right to use it, (see, e.g., Supreme Court Decisions 98Do1701, Aug. 21, 1998; 9Do206, May 14, 1999).

The legislative intent of the crime of unlawful uttering of official documents lies in protecting the public credibility, etc. of the official documents. If there is a risk of undermining the public credibility, etc. of the official documents, the crime shall be established, but if there is no such risk, the crime shall not be established.

The Road Traffic Act stipulates that a person who intends to drive a motor vehicle shall obtain a driver's license from the commissioner of a district police agency (Article 80(1)); that a driver's license shall take effect from the time he/she or his/her agent obtains a driver's license (Article 85(5)); and that the form, material, size, etc. of such driver's license shall be legal (Article 85(2) of the Road Traffic Act; Article 77(2) of the Enforcement Rule of the Road Traffic Act [Attachment 5

According to the Road Traffic Act, a person who has obtained a driver's license shall carry a driver's license while driving a motor vehicle (Article 92(1)), and a driver shall comply with the request when a police official requests a driver to present a driver's license, etc. in order to ensure traffic safety or to maintain traffic order (Article 92(2)). The Road Traffic Act imposes the above duty on a driver of a motor vehicle, etc. intends to allow a police official to promptly check the driver's identity, license conditions, etc. on the spot only with the appearance of a driver's license issued in accordance with the relevant Act and subordinate statutes for traffic safety (see Supreme Court Decision 89Do1396, Aug. 14, 190). If a police official is presented an image file form of a driver's license from a driver of a motor vehicle, etc., such purpose cannot be achieved unless he/she investigates and verifies the process of obtaining it, and it cannot be treated as having presented a legitimate driver's license by crediting the image file.

Therefore, the driver's license, which is stipulated as the object of presentation in Article 92 (2) of the Road Traffic Act, refers to the driver's license itself which can conceal or prove the existence of legitimate driver's license, and the form of image file does not correspond to this.

In light of the elements and legislative purport of the unlawful uttering of official documents, and the contents and legislative purport of Article 92 of the Road Traffic Act, if a driver of a motor vehicle, etc. is requested to present a driver's license by a police officer pursuant to Article 92 (2) of the Road Traffic Act while driving the motor vehicle, the exercise under the specific usage of the driver's license shall be deemed to have presented the driver's license itself issued in accordance with the relevant Acts and subordinate statutes. In such cases, the act of a driver of a motor vehicle, etc. to show to a police officer a photographed image file on the cell phone page, etc., not the driver's license itself, cannot be deemed to be an exercise under the usage laws specified in the driver's license, and thus, it cannot be said that there is a risk that a police officer may lead to a wrong credit.

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

1) The Defendant revoked his/her driver’s license on October 17, 2015, and around July 7, 2016, the Defendant taken Nonindicted 2’s driver’s license issued in the name of Nonindicted 2 issued in the name of the head of Seoul Police Agency (Seoul Police Agency) to the Defendant’s mobile phone and stored the image file in the mobile phone.

2) The Defendant presented an image file stored in the Defendant’s mobile phone when driving a driver’s license at the date, time, and place indicated in this part of the facts charged.

C. Examining the above facts in light of the legal principles as seen earlier, the Defendant’s act of presenting image files, which was demanded by police officers to present a driver’s license while driving, to the police officers, cannot be deemed to have exercised Nonindicted Party 2’s license in accordance with the usage specified by Nonindicted Party 2’s driver’s license. Therefore, the crime of uttering of official document is not established.

D. Nevertheless, the lower court found the Defendant guilty of the part on the unlawful uttering of official document among the facts charged in the instant case on the grounds as indicated in its reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on the use of official document in accordance with the lawful usage, thereby adversely affecting the conclusion of the judgment. The allegation contained in

3. Scope of reversal

For the foregoing reason, the part of the judgment of the court below regarding the unlawful uttering of official document should be reversed, and the court below shall reverse the judgment of the court below in its entirety on the ground that each of the crimes listed in the attached Table 1 through (5) of the judgment of the court of first instance and the crimes listed in the judgment of the court of first instance, among the crimes listed in the judgment of the court of first instance (the crime No. 3 of the judgment of the court of first instance) and the crimes listed in the judgment of the court of first instance, and the crimes listed in

Meanwhile, since the remainder except the above reversed part is separately deliberated, judged, and decided separately, it does not fall under the scope of reversal.

4. Conclusion

Therefore, among the crimes of No. 1 of the judgment of the court of first instance, the part concerning the crimes listed in Tables 1 through 5 of the crimes committed in the annexed Table 1 to the judgment of the court of first instance, and the crimes listed in Articles 2 through 5 of the judgment of the court of first instance shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination, and the remaining appeal shall

Justices Ahn Jae-chul (Presiding Justice)