Requirements for the establishment of the crime of altering a private document / Whether the crime of altering a private document is established where the nominal owner explicitly or implicitly consents or is presumed to consent (negative)

Articles 24 and 231 of the Criminal Act

Supreme Court Decision 2007Do9987 Decided April 10, 2008 (Gong2011Ha, 2280) Supreme Court Decision 2010Do14587 Decided September 29, 201

Defendant

Defendant

Attorney Choi Do-young

Suwon District Court Decision 2013No1627 decided December 20, 2013

The guilty portion of the judgment of the court below (including the acquittal portion in the grounds) shall be reversed, and that part of the case shall be remanded to the Panel Division of the District Court.

The grounds of appeal are examined.

1. The facts charged by the lower court found guilty of the part of the charges are as follows: “The Defendant, without authority, performed the tax accounting office located in Pakistan on January 16, 2012 without authority, by inserting a copy of the sales contract of the land of this case, as if Nonindicted Party 1 entered into a contract on behalf of the buyer Nonindicted Party 1 in the front part of Nonindicted Party 1’s signature, instead of entering into the contract on behalf of the buyer Nonindicted Party 1 for the instant clan △△△△ branch (hereinafter “instant clan”), thereby altering a copy of the sales contract, which is a private document concerning the duty of rights, and submitting a copy of the sales contract, which is a private document for the duty of rights, along with a copy of the written request for pre-assessment review, to the employee of the regional tax office in charge of protecting taxpayers.”

2. The lower court convicted this part of the facts charged on the following grounds.

A. Article 3(1) of the Act on Special Measures for the Registration of Real Estate provides that when applying for the registration of ownership transfer for reasons of a contract, a party, purpose real estate, date of contract, price and payment date thereof, real estate broker, etc. shall attach an applicant for the approval seal to the contract and submit it to the competent registry with the approval seal affixed from the Mayor, etc. having jurisdiction over the location of the real estate subject to the contract. The instant sales contract is not only the seller and buyer’s signature and seal, but also the “verification contract” under the Act on Special Measures for the Registration of Real Estate with the seal affixed on the place of the selling market. As such, as long as the seal of the selling market has been affixed, the instant sales contract is not only the fact that a sales contract was concluded, but also the fact that the contracting party applied for the seal affixed to the same content as the stated, and thereafter, the application for the registration was made with the same content. Therefore, in order for the Defendant to constitute a crime of alteration of private document as well as the seller and buyer’s consent, or at least the explicit or present consent should be presumed.

B. However, according to the records, there is no evidence to prove that the defendant had given the consent of the main market at the time of entering the instant phrase in the copy of the instant sales contract, and in the situation where the pre-assessment review was requested regarding the imposition of inheritance tax on the land subject to the instant sales contract, it is difficult to presume that the defendant could have obtained the consent from the main market for the act of entering the instant phrase in the copy of the sales contract. Therefore, the defendant's act of submitting the instant phrase in the copy of the instant sales contract constitutes the crime of altering private documents and the crime of uttering of altered private documents

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. The crime of altering a private document is established when a person without authority changes the content of the private document under another person’s name to the extent that it does not harm the identity of the original document and creates a new probative value. Therefore, if the nominal owner explicitly or implicitly consented to the modification of the private document, the crime of altering the private document is not established. Although the nominal owner did not consent actually at the time of the act, if the nominal owner knew of the fact, the crime of altering the private document is not established (see, e.g., Supreme Court Decision 2010Do14587, Sept. 29, 201).

The following circumstances revealed by the records, i.e., ① the original land of this case was intended to purchase the clan, but it was impossible to register the ownership under the name of the clan pursuant to Article 6 of the Farmland Act, and completed the registration of ownership transfer based on the title trust with Nonindicted Party 1, the representative of the clan, and completed the registration of ownership transfer. ② The clan of this case was changed due to the new establishment of a clan, and the category of the land was changed on the land of this case, and completed the registration of ownership transfer under the name of the land and the clan: ③ upon the death of Nonindicted Party 1, it was known that the land of this case and the clan were donated to Nonindicted Party 1, the deceased non-Indicted Party 2, the deceased Non-Indicted Party 1’s wife would be liable to levy KRW 48,387,610 on the property of this case; ④ If the Defendant and the non-Indicted Party 1 were to know, at the time of this case’s sales contract, it was decided that it was the buyer of the instant case’s sales contract.

B. In this case where the establishment of the crime of altering a private document is at issue, it is sufficient that the defendant's act of entering the phrase of this case in the copy of the sales contract of this case constitutes a case where the person who prepared the contract of this case consents, and thus the crime of altering a private document is not established.

C. Therefore, there is a lot of room to determine that the Defendant’s act of entering and submitting the instant phrase in the copy of the instant sales contract does not constitute the crime of altering a private document and the crime of uttering of a private document. Nevertheless, the lower court found the Defendant guilty of this part of the charges on the ground that the Defendant did not have any explicit or implied consent or constructive consent from the sowing market, with the seal of approval affixed not only the seller and the buyer, in order to not establish the crime of altering a private document and the crime of uttering of a private document because the said act falls under a case where the person who prepared the document gave consent thereto, and thus, the crime of altering a private document falls under a case where the seller and the buyer have obtained the seal of approval, but also the seller and the purchaser have been expected to have obtained the express

4. Therefore, the guilty portion of the judgment of the court below is reversed on the grounds as seen earlier. However, the court below rendered a single punishment on the ground that the use of altered private documents as to the copy of the instant sales contract among the guilty portion and the use of altered private documents as to the copy of the instant sales contract, namely, the part not guilty, are in a mutually competitive relationship. Thus, the part not guilty of the judgment of the court below is also reversed.

5. Therefore, the guilty portion of the judgment of the court below is reversed (including the acquittal portion in the reasoning), and that part of 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 Kim Yong-deok (Presiding Justice)