In a case where a person, other than a public official, conspired with a public official who assists in the preparation of an official document, submits a false draft document to the commercial company for approval, and makes a false official document be prepared, whether he/she is liable to commit an offense as an indirect criminal accomplice (affirmative)

If a person who assists in the duties of a public official who has the authority to prepare official documents has allowed a public official who is authorized to prepare false documents to submit a draft of documents in which false matters are stated for the purpose of uttering by taking advantage of his/her position, and to approve it, etc., the person who has the authority to prepare false public documents may not be exempted from the liability for the crime as an indirect offender, and the accomplice in this context shall not be limited to a person who has the status of a public official.

Articles 227(1) and 33 of the Criminal Act

Supreme Court Decision 63Do138 Delivered on June 20, 1963

December 13, 1977 (Gong1978, 10519)

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Park Dong-young et al., Counsel for plaintiff-appellant-appellee)

A

Prosecutor

Gwangju District Court Decision 91No496 delivered on July 11, 1991

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

We examine the grounds of appeal.

According to the reasoning of the judgment of the court below, although the defendant was not subject to the training of homeland reserve forces on April 7, 1990, he issued and asked for the issuance of a certificate to the non-indicted 2 who is a defense soldier belonging to the reserve forces and received the training of the reserve forces on the above day, he reported the fact to C to the commander of the same reserve forces who is the person entitled to prepare the false certificate, and if the defendant was ordered to issue a certificate after confirming his participation in the reserve forces training, he issued the certificate by stating his name and other personal information, and the training date upon the above request, etc., on the certificate form for the reserve forces which the defendant had been attached the official seal of the commander of the reserve forces, but the person who committed the crime of preparing false public documents is restricted to the public official with the authority to prepare the document or the person delegated with the authority to prepare the document, exceptionally, if a public official who is in the position to assist the public official with the authority to prepare the document makes a false report or report and let the public official prepare a false document, it cannot be found an indirect accomplice of the above crime.

However, in cases where a person who assists in the preparation of official documents submits a draft document containing false details to his/her superior knowledge for the purpose of uttering by taking advantage of his/her position to make payments, etc., and let a public official who is authorized to prepare false official documents prepare it, an indirect crime is established and the person who conspired to do so cannot be exempted from the liability for the crime as an indirect criminal accomplice (see, e.g., Supreme Court Decisions 74Do1990, Dec. 13, 197; 85Do2728, Aug. 19, 196); and the co-offender referred to in this context is not necessarily limited to a person who has the status of a public official.

According to the decision of the court below, the defense soldier B, who is a public official, has the authority to prepare a false public document by taking advantage of his position assisting the public official who is authorized to prepare a false public document, and thereby has the authority to prepare it as an indirect criminal liability for the crime of preparation of a false public document. Thus, the defendant who is a public official can not be exempted from the liability as an accomplice regardless of whether he is a public official or not.

In light of the above, the court below erred by misapprehending the legal principles as to the indirect co-offenders of the crime of preparing false official documents, thereby adversely affecting the conclusion of the judgment. Therefore, the arguments pointing this out are with merit.

Therefore, the judgment below shall be reversed and the case shall be remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)