[1] In a case where a document in the name of a private person is prepared with the date of survival as of the date of preparation, whether the crime of forging a private document and uttering is established (affirmative)

[2] In case where a person who has made a false registration of transfer of ownership has completed the registration of establishment of a neighboring establishment by agreement with his creditor on such real estate, whether the establishment of a fraudulent entry in the original notarial deed and the crime of the said exercise

[1] Even though a document under the name of another person was forged and exercised, where the nominal owner at the time of preparation of the document has already died, the crime of aiding and abetting private documents or the crime of uttering thereof shall not be applicable unless the date of preparation of the document has become the date of survival of the nominal owner.

[2] Since the right to collateral security cannot be established unless the owner of the property is the owner of the property mortgaged, in case where the real estate was registered for the transfer of ownership by reporting false facts to be owned by him or a third party, and further, as if the real estate was pretended to be owned by himself or the third party, and was registered for the establishment of a collateral security between himself and the creditor under the name of the third party, the principal of the authentic deed

[1] Articles 231 and 234 of the Criminal Act / [2] Articles 228 and 229 of the Criminal Act

[1] Supreme Court Decision 70Do2231 delivered on November 30, 1970 (No. 18-3, 122), Supreme Court Decision 73Do1138 delivered on October 23, 1973 (No. 21-3, 222), Supreme Court Decision 92Do232 delivered on December 24, 1992 (Gong193, 661), Supreme Court Decision 93Do2143 delivered on September 28, 1993 (Gong193, 3023), Supreme Court Decision 94Do1787 delivered on September 30, 1994 (Gong194, 2918)

Defendant

Defendant

Attorney Hong-ray et al.

Seoul High Court Decision 96No2298 delivered on February 5, 1997

The judgment below is reversed. The case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the Defendant’s grounds of appeal Nos. 1 and 2

Examining the reasoning of the judgment of the court below in light of the records, the facts constituting the crime in the reasoning of the judgment of the court of first instance cited by the court below can be sufficiently recognized, and it cannot be deemed that there were errors by misapprehending the rules of evidence or failing to exhaust all necessary deliberations, and it cannot be deemed that there were errors by misapprehending the legal principles as to succeeded co-principal. The grounds for appeal by the defendant

2. As to the second ground for appeal by the defense counsel

Even if a document in the name of another person was forged and exercised, if the nominal owner at the time of preparation of the document has already died, the document shall not be deemed to constitute an offense of aiding and abetting private documents or an offense of uttering thereof unless the date of preparation of the document is the one who is the survival of the nominal owner (see, e.g., Supreme Court Decisions 70Do2231, Nov. 30, 1970; 94Do1787, Sept. 30, 1994).

However, according to the records, Lee Dong-dong, Incheon Metropolitan City, 44-12, 13, 29 of 44-12, 13, 29, and 29 of the three lots of land was already dead on August 16, 1990. According to the facts charged in this case, each contract to establish a mortgage, superficies contract, and proxy contract under the name of Lee Dong-dong, Nam-dong, Incheon, and the date on which the defendant et al. forged and exercised each of the above facts charged in the facts charged in this case shall be July 20, 1994 or August 6, 1994, which was after the death of the Lee Dong-dong, and the date on which the contract to establish a superficies and power of attorney was made shall not be a crime of forging and using each document to establish a mortgage contract, superficies contract, and power of attorney. Since the defendant et al. forged, the above contract to establish a superficies and power of attorney, the name of Lee Dong-dong, the actual owner of each of the above land (180.210

Nevertheless, the court below found the defendant guilty of forging and using each mortgage contract, superficies contract, and power of attorney in the name of the Lee Jong-man. Thus, the judgment below is not reversed. The part of the grounds of appeal pointing this out is with merit.

3. As to the second ground for appeal by the defense counsel

In the event that a mortgage cannot be established unless the owner of the property mortgaged is the owner of the property mortgaged, and the real property is registered for ownership transfer even after reporting the false fact that it is owned by himself or a third party, and the real property is pretended to be owned by himself or the third party, and the registration of ownership transfer was completed with respect to the real property under the name of himself or the third party, the crime of false entry in the authentic copy of the authentic deed and the crime of exercising the same shall be established. Therefore, the court below's decision as to Article 2-1 of the facts stated in the judgment of the court of first instance as cited by the court below is just, and it is not erroneous in the misapprehension of legal principles as to the crime of false entry in the authentic copy of the authentic deed

4. Therefore, the part of the judgment of the court below concerning the fabrication and uttering of private documents can not be maintained as it is. The above crimes and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), fraud, forgery and uttering of public documents, and the crime of false entry and uttering of the original notarial deed are concurrent crimes under the former part of Article 37 of the Criminal Act. Since a single sentence is sentenced, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent

Justices Park Jong-chul (Presiding Justice)