[1] The concept of "securities" and its determination method under Article 214 of the Criminal Code

[2] In a case of perjury, where it is acknowledged that facts different from those of the facts charged on the premise of perjury are identical to those of the facts charged, the essential part of the amendment process of indictment (negative with qualification

[3] Whether a summary order is also included in the "judgment" under the latter part of Article 37 of the Criminal Code (affirmative)

[1] Securities under Article 214 of the Criminal Code refers to the exercise and disposal of property rights indicated on the securities and the possession of such securities is required, and the property rights are embodied in the securities, and the exercise and disposal of such rights are required. If two elements are met, it does not necessarily have a distribution nature. Furthermore, the said securities have the form and appearance to the extent that the general public may mislead himself/herself as genuine. Thus, even if the securities were prepared using the printed note form, if the requirements for promissory notes to the extent that the general public may mislead himself/herself in light of the overall form and content, they fall under the securities under the Criminal Code as a matter of course.

[2] In instituting a public prosecution for perjury, if the facts on the premise that the defendant made a false statement about a certain fact are stated in addition to the pertinent facts at issue, and if the facts on the premise are merely stated in the reasoning that the testimony of the defendant is false, the court can find the defendant guilty by recognizing the facts different from the facts on the premise that the defendant made a false statement in the indictment without due process of changes in indictment if the testimony of the defendant is recognized as having been made contrary to his memory as to the pertinent facts at issue.

[3] According to the latter part of Article 37 of the Criminal Code, the crime for which judgment has become final and conclusive and the crime for which judgment has become final and conclusive shall be concurrent crimes, and the "judgment" in this context includes a summary order.

[1] Article 214 of the Criminal Code / [2] Article 152 of the Criminal Code, Article 298 of the Criminal Procedure Act / [3] Article 37 of the Criminal Code, Article 457 of the Criminal Procedure Act

[1] Supreme Court Decision 85Do1501 delivered on September 10, 1985 (Gong1985, 1377) Supreme Court Decision 92Do976 delivered on June 23, 1992 (Gong1992, 2323) Supreme Court Decision 95Do20 delivered on March 14, 1995 (Gong1995Sang, 168), Supreme Court Decision 97Do2483 delivered on February 27, 1998 (Gong198Sang, 962 delivered on November 24, 198), Supreme Court Decision 98Do2967 delivered on September 19, 199 (Gong199Sang, 84 delivered on November 24, 198) / [2] Supreme Court Decision 86Do3989 delivered on November 11, 198 (Gong99, 97Do497989 delivered on September 39, 1997)

Defendant

Defendant

Law Firm Ampoi, Attorneys Soh Gyeong-han et al.

Seoul District Court Decision 2001No1090 Delivered on May 16, 2001

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

The grounds of appeal are examined.

1. As to the forgery of securities and the exercise of forged securities

The term “securities” under Article 214 of the Criminal Act refers to the exercise of property rights indicated on the securities and the disposal of such securities as a general term referring to the necessity of possession of such securities, and thus, property rights are incorporated into securities, and the exercise of such rights and the possession of securities are required to be disposed of (see, e.g., Supreme Court Decision 95Do20, Mar. 14, 1995). In addition, the said securities have the form and appearance to the extent that they can be mistaken for the general public as genuine (see, e.g., Supreme Court Decision 85Do1501, Sept. 10, 1985). Even if the securities were prepared using the printed promissory note paper, if the general public satisfies the requirements for promissory notes to the extent that they may be mistaken for being true and correct in light of the overall form and content thereof, it naturally constitutes securities under the Criminal Act.

According to the records, while the total amount of loan claims increases by lending money to the defendant several times, it is close to the defendant as well as the non-indicted who is the defendant's husband, and the non-indicted is well aware that the non-indicted is receiving a lot of wages. Thus, the defendant demanded that "the defendant issue a promissory note under the name of the husband in order to make it clear and reliable that the husband can not lend money to the defendant," and the defendant requires that "the defendant will issue a promissory note under the name of the husband in order to make him aware of the contents of his obligation and make it clear". Accordingly, the defendant's appearance of the husband after the husband's death, was changed on August 25, 1993, September 15, 1994, and April 6, 1994, the court below erred in the misapprehension of the legal principles as to the issuance of a promissory note as well as in the name of the non-indicted 125,000,000 won which is the part of the issuance of the above promissory note.

The Supreme Court decision that delivered the grounds of appeal is inappropriate to be invoked in the instant case, unlike the instant case.

2. As to the perjury

A. Examining the reasoning of the judgment of the court below in light of the records, it is just to maintain the judgment of the court of first instance which convicted the defendant of each perjury of Article 2 of the facts constituting the crime in the judgment of the court below, and there is no violation of the rules of evidence or any error of misconception of facts due to incomplete deliberation, as

B. If a prosecutor institutes a public prosecution for perjury, in addition to the facts in question where there is a false statement about a certain fact in the facts charged, and the facts on the premise that the testimony of the defendant is false, if the facts on the premise are stated in addition to the facts in question, the court finds that the testimony of the defendant was made in violation of memory as to the pertinent facts in which the false testimony of the defendant is involved, the court may render a conviction by recognizing the facts different from the facts on the premise stated in the indictment without the amendment of the indictment (see Supreme Court Decision 86Do866, Nov. 11, 1986). Accordingly, with the same purport, the court below maintained the judgment of the first instance that found the facts on the charge of perjury as well as the facts on the charge of perjury as stated in the judgment of the court below, and maintained the judgment of the court of conviction that found the defendant guilty without the amendment of the indictment procedure, and there is no violation of law by misunderstanding the legal principles as to

3. Ex officio determination

According to the latter part of Article 37 of the Criminal Code, the crime for which judgment has become final and conclusive and the crime for which judgment has become final and conclusive shall be concurrent crimes, and the "judgment" in this context shall include a summary order (see, e.g., Supreme Court Decision 9Do116, Apr. 9, 199).

According to the records, the defendant was notified of a summary order of KRW 300,00 as a crime of violating the Food Sanitation Act at the Seoul District Court on February 22, 199 and the above summary order became final and conclusive on April 3 of the same year. Since each crime of forging securities and the crime of uttering of forged securities committed prior to the conclusion of the above summary order are concurrent crimes with the crime established by the above summary order and the crime of uttering of forged securities under the latter part of Article 37 of the Criminal Act, the court below should make a new punishment for each of the above crimes for which judgment has not been rendered under Article 39 (1) of the Criminal Act, but the court below should do so, even though the above crime and perjury committed by the defendant after the above summary order became final and conclusive, it erred by misapprehending the legal principles as to concurrent crimes under the former part of Article 37 of the Criminal Act, and since such illegality affected the judgment, it is obvious that the judgment of the court below has reversed.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Cho-Un (Presiding Justice)