[1] Requirements for the establishment of unlawful uttering of official document

[2] Whether presenting another person's driver's license while renting a motor vehicle to an employee of both the vehicle leasing companies, which is one's own, constitutes an unlawful uttering of official documents (affirmative)

[1] The crime of unlawful uttering of official documents is established when a licensee and a person who does not have the right to use the official document or document prepared with a specified purpose makes it improper, or when a person who has the right to use it exercises it for an unlawful purpose or exercises it unlawfully against a legitimate usage.

[2] A driver's license is an official document evidencing that a person has passed a driver's license test and has been permitted to drive a motor vehicle, and the leasing company under the terms and conditions of a motor vehicle rental agreement allows a person who has not obtained a driver's license to refuse to rent the motor vehicle. Thus, if the defendants, who intend to rent a motor vehicle, hold another person's driver's license necessary for driving the motor vehicle from the employee of the leasing company, and presented it to the employees of the leasing company, by means of a request for presentation of the driver's license to confirm whether the person has the driver's license, he/she is the person who has obtained another person's driver's license, the above acts of the defendants cannot be deemed to be merely for the purpose of identification, and this is the use for the most unjust purpose as if the person who has not obtained the right to use the driver's license, and therefore, it constitutes an unlawful uttering of public document

[1] Article 230 of the Criminal Act / [2] Article 230 of the Criminal Act, Articles 69 and 77 of the Road Traffic Act

[1] Supreme Court Decision 82Do1985 delivered on June 28, 1983 (Gong1983, 1211), Supreme Court Decision 82Do2851 delivered on February 28, 1984 (Gong1984, 640), Supreme Court Decision 91Do1052 delivered on July 12, 1991 (Gong1991, 2189), Supreme Court Decision 93Do127 delivered on May 11, 1993 (Gong193Ha, 1753)

Defendant 1 and one other

Prosecutor

Attorney Yellow-gu

Busan District Court Decision 98No1084 delivered on May 15, 1998

The judgment below is reversed and the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

According to the reasoning of the judgment of the court below, the court below affirmed the judgment of the court of first instance that acquitted the defendants on the charges that the defendants conspired to use the driver's license of the above non-indicted 1, etc. for the purpose of the original purpose of use of the above driver's license when they borrowed a motor vehicle from the Yong-Namk, Youngnam Kim Kim-do Branch, and the Daejeon Daejeon Branch of the Korea National University, which is a motor vehicle leasing company, and presented the driver's license of the non-indicted 1, etc. as the defendant 2 upon the request of the non-indicted 1, who is the employee in charge, for the presentation of the driver's license of the above motor vehicle, it cannot be deemed an exercise according to the original purpose of use of the driver's license of the above vehicle, and a series of acts that the above employees in charge request the defendants to present the driver's license of the motor vehicle and confirmed the driver's license of the motor vehicle by presenting the motor vehicle from the defendants

The crime of uttering of official documents is established when a person who used public documents prepared with a specified purpose or use, or a person who does not have the right to use them, uses them pretended to use them for an unjust purpose, or exercises them unlawfully against a legitimate usage (see, e.g., Supreme Court Decision 93Do127, May 11, 1993). Meanwhile, the act of acquiring a driver's license under another person's name and presenting it for identification verification upon request by a police officer, etc. cannot be deemed as presenting it in accordance with the above purpose of use, and it does not constitute an unlawful uttering of official documents (see, e.g., Supreme Court Decision 96Do1733, Oct. 11, 196). However, since the driver's license originally is an official document proving that the person who passed the driver's license test and obtained the license for driving of a motor vehicle is the one who obtained the license from the owner of the motor vehicle for rent of the motor vehicle, it cannot be viewed as an act of uttering of the motor vehicle from the above employee.

Nevertheless, the court below erred by misapprehending the legal principles as to the unlawful uttering of official document, thereby affecting the conclusion of the judgment, just on the grounds stated in its reasoning. The grounds for appeal pointing this out are with merit.

Therefore, the part of the judgment of the court below which acquitted the Defendants as to the unlawful uttering of official document is not exempt from reversal. As long as it is interpreted to the purport that the not guilty part and the remaining facts charged against the Defendants, which the court below found the Defendants guilty, have been prosecuted as concurrent crimes under the former part of Article 37 of the Criminal Act, and as long as it is interpreted to the purport of appeal against the whole dismissal of the prosecutor's appeal by the prosecutor

Therefore, 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 by the assent of all participating Justices.

Justices Cho Chang-hun (Presiding Justice)