[1] Whether the defendant has the right to appeal against the lower court's judgment that was not disadvantageous to the defendant (negative)

[2] The meaning and degree of false recognition in the crime of preparing false public documents

[3] The case where it can be recognized as a co-principal without modification of an indictment for a sole criminal offense

[1] Articles 338, 357, and 371 of the Criminal Procedure Act / [2] Article 227 of the Criminal Act / [3] Article 30 of the Criminal Act, Article 298 of the Criminal Procedure Act

[1] Supreme Court Decision 87Do1702 delivered on August 31, 1987 (Gong1987, 1534), Supreme Court Decision 2005Do4866 delivered on September 15, 2005, Supreme Court Decision 2007Do11 Delivered on July 27, 2007 / [2] Supreme Court Decision 85Do758 delivered on June 25, 1985 (Gong1985, 1089), Supreme Court Decision 99Do1395 delivered on November 10, 195 (Gong195Ha, 3965) / [3] Supreme Court Decision 99Do1911 delivered on July 23, 199 (Gong199; 199Ha, 18329)

Defendant 1 and one other

Defendant 1 and Prosecutor

Law Firm Assessment, Attorneys Kim Nam-moo et al.

Suwon District Court Decision 2013No392 decided April 25, 2013

Of the lower judgment, the part on Defendant 2’s issuance of a false official document and the issuance of each false official document around August 2, 201, around August 1, 2011, around August 2, 2011, around August 19, 201, around October 27, 201, and around November 2, 201, is reversed, and that part of the case is remanded to the Suwon District Court Panel Division. The remainder of the Prosecutor’s appeal and Defendant 1’s appeal are dismissed.

1. Judgment on Defendant 1’s appeal

The essence of an appeal for a defendant is to file an appeal against a judgment by a lower court, which is an objection against a judgment by a lower court and is to correct a disadvantageous judgment against a defendant, and thus, the defendant cannot have the right to file an appeal unless the judgment by a lower court is disadvantageous to a defendant (see Supreme Court Decision 87Do1702 delivered on August 31, 1987).

According to the records, with respect to the judgment of the first instance that acquitted Defendant 1 on the preparation and exercise of each false official document around May 19, 201, Defendant 1 did not appeal against the judgment of the court of first instance, which acquitted Defendant 1. Although the prosecutor appealed on the grounds of mistake of facts or misunderstanding of legal principles as to the acquittal portion and unreasonable sentencing, the judgment of the court below dismissed the prosecutor’s appeal, and thus, the judgment of the court below is not disadvantageous to Defendant 1.

Therefore, Defendant 1’s appeal against the judgment below is unlawful, since Defendant 1 did not have the right of appeal.

2. As to the prosecutor's appeal

A. On May 19, 201, as to the Defendants’ grounds of appeal on the preparation of each false official document and the exercise of each false official document

On May 19, 201, based on the facts admitted by the evidence of employment, as to the preparation of each false official document and the exercise of each false official document, the court below found Defendant 1's act of preparing and uttering each falsified official document with Defendant 2's name without Defendant 2's prior consent or consent to the restoration to the original state, and found that Defendant 1's act of preparing and uttering each falsified official document with Defendant 2's name without Defendant 2's consent to the restoration to the original state, and submitted it to Defendant 2 by a private person who is not aware of the fact. The evidence submitted by the prosecutor alone is insufficient to find that Defendant 1 was aware of the fact that Defendant 2 prepared and affixed a false official document with Defendant 1's name and obtained approval as above, and there is no other evidence to find otherwise, and therefore, Defendant 2 cannot be established the crime of preparing and uttering the falsified official document with Defendant 2's name without Defendant 2's prior consent or approval, and found Defendant 1's act not guilty as to the so-called false official document.

Examining the reasoning of the judgment below in light of the records, the above measures of the court below are just, and there is no violation of the rules of evidence as alleged in the grounds

B. On August 19, 201 and November 2, 2011, Defendant 2’s ground of appeal as to the preparation of each false official document and the exercise of each false official document against Defendant 2

1) The lower court, on the grounds of the reasoning of its ruling, it is difficult to recognize that Defendant 2 was aware in advance that Defendant 1 used false photographs or that each of the unlawful buildings in this part was not restored to the original state. However, even if Defendant 1 was not restored to the original state, the lower court recognized that Defendant 2 was merely a private person, as if Defendant 2 had done on-site verification, even though Defendant 2 did not have done on-site verification, and that Defendant 2 was not aware of it.

In addition, the lower court determined that the part of the official business trip of Defendant 2, which is a police officer assigned for special guard, to be in charge of preparing a false official business trip of Defendant 1, is not a simple confirmation of the site, on the ground that it is difficult for the police officer assigned for special guard to obtain approval from the person who is in charge of the construction guidance to conduct an on-site inspection of the illegal building and to prepare and submit a business trip to the person who is assigned for special guard for special guard for special guard for special guard for special guard for special guard for special guard for special guard for special guard for special guard for special guard for special guard for special guard to obtain approval from the person who is in charge of the original official business, on the ground that it is difficult for the person to conduct an on-site inspection of the illegal building, and on the ground that the official business trip prepared by the police officer for special guard for special guard for special guard for special guard for special guard to verify whether it is restored to the original state or not, on the ground that the official business trip of Defendant 2, who is in charge of the above official business trip, is not an important.

2) However, the lower court’s determination that Defendant 2’s above act did not constitute the crime of preparing false official document and of uttering of false official document is difficult to accept for the following reasons.

In the crime of preparing false public documents, false means the case where the contents indicated are not consistent with the truth and thus the public credibility in the document is at risk (Supreme Court Decision 85Do758 delivered on June 25, 1985), and the crime of preparing false public documents is established if it is recognized that the contents are false in preparing false public documents (Supreme Court Decision 95Do1395 delivered on November 10, 195).

As found in the facts acknowledged by the court below, Defendant 2 asked Defendant 1, the police assigned for the same guard, to confirm the actual site of restoration to the original state without confirming the actual site, and then, if Defendant 1 did not know whether the business travel tag prepared by Defendant 1 is true and he directly confirms the site and submitted his signature to the public official in charge of the completion of restoration to the original state, he shall be deemed to constitute the crime of preparing false public documents and the crime of uttering of false public documents.

Nevertheless, the court below determined that Defendant 2’s above act cannot be applied to Defendant 2’s crime of preparing false official document and of uttering of false official document solely based on its stated reasoning. The court below erred by misapprehending the legal principles on the preparation of false official document, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

C. Determination as to Defendant 2’s grounds of appeal on the preparation and exercise of the remaining false official document

1) The summary of this part of the facts charged is as follows: Defendant 2: (a) at the request of Defendant 2 on August 1, 2011, confirmed that the illegal alteration of the purpose of use was not restored to the original state, Defendant 2 prepared a false statement of business trip to the effect that “the restoration was completed by photographing a photograph as if it was restored to the original state; and (b) at around the second day of the same month, Defendant 2 submitted a false statement of business trip to the public official who does not know of the fact that the illegally altered purpose of use or extended portion was not restored to the original state; and (c) upon the request of the public official who prepared a false statement of business trip to the effect that the portion was not restored to the original state with a photograph taken prior to the installation of the manufacturing facility was restored to the original state; and (d) submitted a false statement of business trip to the public official who was not aware of the fact that it was completed by attaching it to the commercial building on October 27 of the same year; and (d) prepared a false statement of completion to the original state.”

2) As to the above facts charged, the first instance court found Defendant 2 guilty on the following facts: (a) contrary to the above facts charged, Defendant 2: (b) prepared a false statement of official travel as if the restoration to the original state was not completed; or (c) made a false statement of official travel to Defendant 2; (b) Defendant 2 prepared a false statement of official travel to the private person under his own name or prepared a false statement of official travel to the private person in collusion with Nonindicted 2 that “Defendant 2 prepared and exercised a false statement of official travel to the public official in charge, etc., as if he had confirmed the scene,” and (d) found Defendant 2 guilty on the ground that “the defendant 2 prepared a false statement of official travel to the public official in charge, etc., as if the restoration to the original state was completed solely by the Defendant 2, and submitted it to the public official in charge, etc., without proof of the crime.”

3) On the grounds of the ruling, the lower court determined that: (a) it is difficult to recognize the fact that Defendant 2 made on-site verification and did not complete the restoration to the original state; (b) made a business trip statement with false pictures as if the completion was completed; (c) made it difficult to recognize the fact that Defendant 2 interfered with the control of illegal buildings by the public official performing entertainment viewing and viewing by the foregoing method; (d) made on-site verification as to whether the above illegal building was restored to the original state located in the region in which Defendant 2 was in charge; (c) made a business trip statement in Defendant 2 as if the completion was not restored to the original state even if Defendant 2 did not have been restored to the original state; and (d) made a business trip statement in Defendant 2 as if Defendant 2

In addition, the lower court, on the same grounds as 2-B(1)(b), determined that Defendant 2’s act of completing a business trip name with his signature on the above business trip name may not be punished as the crime of preparing a false public document and the crime of uttering of a false public document, with the knowledge that Defendant 2 was true with the business trip name prepared by another police assigned for special guard by falsity.

Furthermore, even if Defendant 2’s above act may be punished for the crime of preparing false official document and the crime of uttering of false official document, the court below reversed the judgment of the court of first instance on the ground that this part of the facts charged and the criminal facts recognized by the court of first instance fall under the case where Defendant 2’s intentional intent, i.e., the false contents of Defendant 2’s statement of official travel cards recognized by Defendant 2 are entirely different, and thus, it cannot be found guilty without changing the indictment, and found Defendant 2 not guilty of this part of the facts charged.

4) Of the judgment below, the part that Defendant 2’s above act does not constitute the crime of preparing false official documents and the crime of uttering of false official documents, and the part that found Defendant 2 guilty without changing indictment in the first instance court is unlawful is difficult to accept for the following reasons.

A) First, we examine the part concerning the amendment of the indictment.

If there is no concern that the defendant's exercise of his/her right of defense may not be seriously disadvantaged, it does not violate the principle of no accusation even though the court acknowledged facts differently within the same scope without going through the procedures for modification of indictment (see Supreme Court Decision 2001Do970, Mar. 15, 2002). If it is acknowledged that he/she committed the same crime in collusion with another person who was prosecuted as a single criminal, it does not necessarily require Amendments to Bill of Indictment in cases where it is not likely that the defendant would be able to exercise his/her right of defense and actually disadvantage him/her (see Supreme Court Decision 2007Do309, Apr. 26, 2007, etc.).

As seen earlier, both the facts charged and the facts charged by the first instance court are the same in that Defendant 2 prepared and used a false statement of official travel as indicated in the judgment as a police assigned for special guard in charge of the control of illegal buildings. However, the facts charged are that Defendant 2 knowingly prepared and used a false statement of official travel even though he was unaware of the fact that he did not restore the original state to the original state, the first instance court did not know that Defendant 2 did not confirm it, but did not know that he did not confirm the actual state, but prepared and used a false statement of official travel or a false statement of official travel prepared by Nonindicted 2 as he did not confirm the actual state, so the developments leading up to the preparation of a false statement of official travel or the false contents perceived by Defendant 2 are somewhat different.

However, according to the records, Defendant 2, who received a photograph from Nonindicted 2 or a third party from the first instance court through the first instance court, prepared a business trip name document or received a business trip name document already prepared without confirming the site, and related to this, he/she can be aware of the fact that he/she was examined as a witness in the first instance court. Thus, even though the preparation process is somewhat different, the content of this part of the facts charged and the facts charged are identical in that he/she was the same business trip name as the subject of false preparation.

Therefore, it cannot be said that the first instance court recognized this part of the facts charged as a single criminal defendant without the amendment process of indictment, and there is a concern that it might give disadvantages to Defendant 2's exercise of defense right.

B) Furthermore, in light of the legal principles as seen earlier, if a person who was unable to obtain a name or non-indicted 2’s name or non-indicted 2’s name, as found in the facts acknowledged by the lower court, confirmed the restoration of each illegal building located in the area in charge of Defendant 2’s restoration to the original state, and then, as if he did not confirm the actual state, Defendant 2 did not know the fact that he had verified the actual state, and Defendant 2 did not know the restoration of the original state, and then signed his signature on each business tripbook as if he had confirmed the actual state, it constitutes the crime of preparing a false official document and the crime of uttering of a false official document.

5) Nevertheless, the court below reversed the judgment of the court of first instance that found the defendant guilty of this part of the facts charged, and sentenced the defendant not guilty of this part of the facts charged. The court below erred by misapprehending the legal principles on the required modification of indictment and the crime of preparing false official document, which affected the conclusion of the judgment. The ground of appeal pointing this out is

D. Judgment on the ground of appeal as to Defendant 2’s obstruction of performance of official duties by fraudulent means

Examining the reasoning of the judgment of the court below in light of the records, the decision of the court of first instance that acquitted Defendant 2 of the obstruction of the performance of official duties by fraudulent means is just and there is no violation of the rules of evidence as alleged in the grounds of appeal.

E. Judgment on the appeal against Defendant 1’s conviction

According to the records, the prosecutor filed an appeal against the conviction of Defendant 1 among the judgment below, but there is no objection against the appellate brief or petition of appeal.

3. Conclusion

Therefore, the part of the lower judgment regarding Defendant 2’s issuance of a false official document and the exercise of each false official document is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. The remainder of the Prosecutor’s appeal and Defendant 1’s appeal are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yang Chang-soo (Presiding Justice)