In case where a third party requests a third party to produce an identification certificate for identification and presents another person's driver's license, whether it constitutes an offense of unlawful uttering of official documents (affirmative)

[Majority Opinion] A driver’s license is an official document attesting that a person who has passed a driver’s license test and is permitted to drive a motor vehicle. It is reasonable to interpret that a person who has passed the driver’s license test has the function of “certification of qualification” and “a person who has passed the driver’s license test” at the same time. On the front of the driver’s license, the name, resident registration number, and address of the person who has obtained the driver’s license are stated, together with photographs, and the details of changes are attached to the back, and it is sufficient to verify the identity and identity of the person who has obtained the driver’s license on a regular basis, and the validity of the mentioned contents is guaranteed. Nevertheless, it is reasonable to interpret that the purpose of use is limited to the driver’s license with the certificate of qualification. In addition, it is recognized that the driver’s license is one of more than three separate identification certificates, such as identification certificates under the Certification of Seal Imprint Act, personal identification under the Election of Public Officials and Prevention of Election Unlawful Election Act, and real estate Registration Act, and thus, one is more widely used in the driver’s license.

[Dissenting Opinion] Illegal uttering of official document is a person who is not the holder of the original document and exercises the right in accordance with the principle of no punishment without the law. The original purpose of the driver’s license is to carry it while driving and present it at the time of request of the police officer, and it does not constitute an exercise of another person’s driver’s license for confirmation of identity. Thus, it cannot be said that the act of presenting the same person’s license is an act in accordance with the principle of no punishment without the law. Article 230 of the Criminal Act provides that an act of using official document constitutes an unlawful uttering of official document. It is hard to say that all official documents are included in the object of the act and their use with the original purpose of no punishment without the law, and thus, it is hard to say that the same person’s act of using the document constitutes an infringement of the purpose of the driver’s license with the original purpose of no punishment without the law, and thus, it is hard to say that the same person’s use of the document constitutes an unlawful use of official document.

Article 230 of the Criminal Act; Articles 68, 69, and 77 of the Road Traffic Act; Articles 17-9 and 21(2) of the Resident Registration Act; Article 13(3) and (4) of the Passport Act

Supreme Court Decision 74Do1695 delivered on September 4, 197 (Gong1974, 7962) Supreme Court Decision 81Do130 delivered on December 8, 1981 (Gong1982, 186) Supreme Court Decision 82Do1985 delivered on June 28, 1983 (Gong1983, 1211), Supreme Court Decision 88Do1593 delivered on March 28, 1989 (Gong1989, 708) (amended on May 28, 1991), Supreme Court Decision 90Do187 delivered on May 29, 197 (Gong191, 1820) (amended on July 12, 1991); Supreme Court Decision 9Do3939 delivered on September 29, 197 (amended on September 19, 209)

Defendant

Prosecutor

Seoul District Court Decision 2000No1677 delivered on April 7, 2000

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

1. A. As to the unlawful uttering of official document among the facts charged in the instant case, the lower court determined that the act of presenting another person's driver's license to a police officer who is a criminal suspect in violation of the Punishment of Violences, etc. Act, as the act of presenting another person's driver's license does not constitute an unlawful uttering of official document, on the ground that the act of presenting another person's driver's license to a police officer who is a criminal suspect in violation of the Punishment of Violences, etc. Act, is not an unlawful uttering of official document, and therefore, the act of presenting another person's driver's license to retain his/her personal information does not constitute an unlawful uttering of official document, since the person who obtained the driver's license is a person who has passed the driver's license test and is permitted to drive a motor vehicle.

B. The above determination by the court below is in accordance with the opinion that the court decided on the presentation of driver's license and the establishment of unlawful uttering of official document.

2. A. Article 230 of the Criminal Act provides that the elements of the crime of unlawful uttering of official documents are only "a person who makes a fraudulent use of documents or drawings of a public official or a public office". Since the scope of punishment is likely to be excessively expanded, this court has strictly interpreted the subject, objects, and attitudes of the crime concerning the above crime, and has limited the scope of punishment within a reasonable scope, and such attitude should be observed in the future.

B. However, this Court decides that the presentation of driver's license and the establishment of unlawful uttering of official documents should change the position so far for the following reasons.

First, a driver's license is an official document that proves that a person who has passed a driver's license test and is permitted to drive a motor vehicle. A driver's license has the function of "certification of qualification" that a person who has passed the driver's license test and "a person who has passed the driver's license test" and "a person who has passed the driver's license test." The front of the driver's license is accompanied by the name, resident registration number, and address of the person who has obtained the driver's license, and a photograph is attached, and the details of the change are to be issued on a regular basis, and the latter is sufficient to prove the identity and status of the person who has obtained the driver's license, and the validity of the contents of the driver's license is guaranteed. Nevertheless, it is unreasonable to interpret that the purpose of the driver's license is limited only to the certificate of qualification in the act of presenting the driver's license. It is recognized that the driver's license is one of various procedures of identification verification under the Certification of Seal Imprint Act, the elector's identity verification under the Election and Prevention of Election Act, and Real Estate

In addition, the Resident Registration Act itself is the principle of the resident registration certificate, but it is expected to function as another document by providing that a person who fails to present his/her resident registration certificate can verify his/her identity by a certificate or other means of identification.

On the other hand, more than half of the people of the age who can obtain a driver's license in our society have a driver's license, especially those engaged in economic activities, the proportion is much higher than that of those who are engaged in economic activities, and even in transactions with financial institutions, the driver's license is widely used as an identification certificate equal to the resident registration certificate.

According to the above, the act of presenting another person's driver's license upon the request of a third party to present an identification certificate to verify his/her identity constitutes an unlawful uttering of official document as an event in accordance with the purpose of use.

C. Therefore, the precedents of this court, which were judged differently from the interpretation of this judgment concerning the presentation of driver's license and the establishment of unlawful uttering of official documents (Supreme Court Decisions 88Do1593, Mar. 28, 1989; 90Do1877, May 28, 1991; 91Do1052, Jul. 12, 1991; 91Do3269, Nov. 24, 1992; 96Do1733, Oct. 11, 196; 99Do1237, Feb. 11, 200) are inconsistent with the opinion and scope of this judgment.

3. Nevertheless, the court below acquitted the defendant on the unlawful uttering of official document among the facts charged in this case. The court below erred by misapprehending the legal principles as to the unlawful uttering of official document as to driver's license, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit

Therefore, the non-guilty part of the judgment below and the remaining guilty part of the judgment of the court below should be sentenced to one punishment in concurrent crimes under the former part of Article 37 of the Criminal Act, and the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices, except for the dissenting opinion by Justice

4. Dissenting Opinion by Justice Song Jin-hun

A. The majority opinion argues that the act of presenting another person's driver's license upon a third party's request to present an identification certificate in order to verify his/her identity is an exercise in accordance with the purpose of use, and that the previous Supreme Court precedents against this opinion should be modified. The majority opinion argues that the act of presenting another person's driver's license should be established as an unlawful uttering of official document.

However, this opinion can only be viewed as attributable to the misunderstanding of the legal principles on the elements of the crime of unlawful uttering of official document.

The unlawful uttering of official document is an official document in which the purpose of use is specified and constitutes an exercise in accordance with the purpose of use. The original purpose of the driver's license is to carry it while driving a motor vehicle, to present it when the police officer requests it while driving the motor vehicle, and not to prove the identity of the holder. Thus, the act of presenting another person's driver's license requested by a third person for the purpose of identification cannot be deemed an exercise in accordance with the purpose of use of the driver's license, and therefore, the crime of unlawful use of official document shall not be established.

B. Article 230 of the Criminal Act provides that "a person who makes an unlawful use of documents or drawings by a public official or a public office" as the constituent element of the crime of unlawful uttering of official documents is limited to "a person who makes an unlawful use of documents or drawings by a public official or a public office." However, in the context of text, whether all official documents are included in the object of the act and their use are specified, is not asked. However, in the case of official documents, the licensee and the use of which cannot be specified, it is doubtful whether the crime of unlawful uttering can be established even in such a case, and if so, the scope of punishment may be excessively expanded.

In this regard, the majority opinion seems to be the same opinion, and in a case where the elements of crime are abstract, ambiguous, or vague concepts, or the scope of application is too broad and comprehensive, and thus it is not clear what is prohibited by a citizen with ordinary judgment ability, it is in violation of the principle of no punishment without law.

Therefore, until now, the Supreme Court limited the object of the unlawful uttering of official document to the official document whose purpose is specified, and limited to the exercise according to the original purpose of use of the act (see, e.g., Supreme Court Decisions 74Do1695, Sept. 4, 1974; 81Do130, Dec. 8, 1981; 82Do1985, Jun. 28, 1983; 93Do127, May 11, 1993; 9Do206, May 14, 199).

In order to prove that a certain official document is a person with a certain qualification, personal information necessary for verifying the identity of the person should be stated as well as the fact that the person acquired the qualification and the photograph should also be attached, so the certificate of qualification shall always be accompanied by the same person certification. As such, the original purpose of use cannot be seen to prove the identity of the holder on the ground that the function of the same certification is inherent in the official document for certification of qualification.

However, according to the provisions of Article 17-9 of the Resident Registration Act, a resident registration certificate is a general identification certificate for a person of 17 years of age or older. However, according to the provisions of Article 68 of the Road Traffic Act, a driver's license is a public document that proves that a person who passed the driver's license test and is permitted to drive a motor vehicle is a person who is permitted to drive a motor vehicle, and its original purpose of use is specified so that the person who is permitted to drive a motor vehicle can prove that he/she is a person who is permitted to drive a motor vehicle by presenting it

As pointed out in the Majority Opinion, a driver’s license is being used in confirming the identity of the possessor in the field of reality and certain laws and regulations, but this is merely a factual or incidental usage of the driver’s license, and cannot be deemed as its original usage, and the factual or incidental usage cannot be deemed to take place solely on the ground that it is widely used as such usage. This is also the same in the case of passport, public official certificate, employee certificate, student certificate, etc. as public documents pertaining to the certification of a certain qualification, other than the driver’s license.

Nevertheless, if a certain official document is deemed to be widely used for purposes other than its original intended purpose, the scope of punishment due to the unlawful exercise of official document would be significantly expanded, and this would substantially conflict with the previous precedents that limited the scope of punishment within a reasonable scope by narrowly interpreting the object and form of the act of unlawful uttering of official document in accordance with the principle of no crime without the law. Thus, the majority opinion should have carefully considered such unreasonable results.

The crime concerning documents is intended to protect the general public’s trust in relation to the establishment of the authenticity of documents, either in form or form. The exercise of documents, once duly formed, cannot be deemed to infringe such legal interests by itself, and if other legal interests were violated by that exercise, it is difficult to punish the person as a crime of infringement of such legal interests. Therefore, it is highly necessary to punish the person who unlawfully uses another person’s resident registration certificate, Article 21(2) of the Resident Registration Act, Article 13(3) of the Passport Act, and Article 13(4) of the Passport Act, are punished separately for the purpose of exercising a passport for the purpose of transferring, lending or arranging the use of a passport under another person’s name, and those who transfer or borrow a passport under another person’s name for the purpose of exercising it.

C. For the above reasons, I cannot agree with the majority opinion, and the Supreme Court precedents that the majority opinion should be amended shall be maintained as they expressed the consistent opinion of the Supreme Court that has reasonably restricted the object and form of the unlawful uttering of official documents.

The final judgment of the Chief Justice of the Supreme Court (Presiding Justice) is delivered with Jin-hun Jin-hun (Presiding Justice)