[1] The method of "exercise" as stated in the crime of uttering of forged documents

[2] The case holding that sending an image file which can be found after forging a new application for subscription to a mobile phone to a third party by e-mail constitutes an event of the aforementioned investigation document

[1] In the crime of uttering of a forged document, an event refers to the use of a forged document in accordance with the method of using it as if it were the authentic document, and there is no restriction on the method of uttering of the falsified document so long as the forged document is used as if it were the authentic document, such as presenting, delivering, keeping, allowing perusal of the forged document, or sending and delivering it by mail. In addition, not only cases where the forged document itself is directly presented to the other party, or its reproduction is presented by mechanical means, but also cases where it is presented by facsimile, or its reproduction is made by sending it to the slicker connected to the computer, and then it is viewed on the computer screen.

[2] In a case where a new application for subscription to a mobile phone was forged and then sent an image file that contained in the can to a third party by e-mail, the case holding that the act of transmitting the image file itself does not constitute “documents” as to documents, but is deemed to constitute a crime of uttering of a falsified investigative document since it is the act of using a forged application for subscription.

[1] Articles 231 and 234 of the Criminal Act / [2] Article 231 of the Criminal Act

[1] Supreme Court Decision 94Do4 delivered on March 22, 1994 (Gong1994Sang, 1376)

Defendant

Prosecutor

Attorney Yoon Young-chul

Chuncheon District Court Decision 2008No72 decided May 30, 2008

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

1. The judgment of the court below

The summary of the facts charged as to the fabrication of private documents of this case and the uttering of a falsified investigation document of this case is as follows: (i) around November 25, 2006, the defendant applied for the purchase of mobile phone at the “G-market,” an Internet shopping site at the “G-market,” which is an Internet shopping site at Jinju, entered the personal information, its account number, and address, etc. posted on the Internet, entered and printed out the personal information of Non-Indicted 1 using the computer in the form of a new application form for admission; and (ii) stated the name of the customer at the bottom of the application form and the signature column as “Non-Indicted 1,” without authority for the purpose of exercising the right and duty, forged one copy of the application form for a new mobile phone entry under the name of Non-Indicted 1, which is a private document related to the right and duty, and (iii) made the aforementioned application form with the above date, imageization, and subsequently, the defendant was found guilty of the above facts of the use of the private document of this case.”

The court below affirmed the judgment of the first instance which acquitted Nonindicted 2 of the uttering of the above investigation document on the ground that the image created by the canned application form for a forged mobile phone cannot be deemed as a document because the image created by causing an electronic reaction at each time when the program to see the image file is carried out, and it cannot be deemed as a document continuously fixed on the screen. Such image cannot be deemed as a document, and it cannot be deemed as an exercise of a forged document by transmitting it to another person as a computer monitor. In addition, the event requires that it is related to a copy reproduced by the forged document itself or mechanical method. In this case, the image transmitted and presented to Nonindicted 2 is merely the above image, and it cannot be deemed as a single method to exercise the above investigation document that has already existed in this part of the facts charged, since it cannot be deemed as a single method to exercise the above investigation document.

2. Judgment of the Supreme Court

However, we cannot accept the above judgment of the court below.

For the crime of uttering of a forged document, an event refers to using a forged document as if it were a genuine document (see, e.g., Supreme Court Decisions 75Do422, Mar. 25, 1975; 87Do1217, Jan. 19, 198). As long as the forged document is used as a genuine document, such as presenting, delivering, keeping, allowing access to, or sending, and allowing access to, the forged document, there is no limitation on the method of the event; further, the document itself is directly presented to the other party or a copy thereof by mechanical means, as well as the presentation of the copy thereof by facsimile, or the transmission of it by reading it with a sclter connected to the computer, and thus constitutes an event on the computer screen.

However, according to the facts and records acknowledged by the court below, the defendant applied for the purchase of a mobile phone at G-market, an Internet shopping site, and entered and printed the personal information, the account number, and the address of Non-Indicted 1 using the computer in the new application form for subscription on the Internet, and then forged one copy of the application form for new subscription to the mobile phone in the name of Non-Indicted 1, which is a private document concerning rights and duties, without authority, for the purpose of exercising rights and duties by stating that Non-Indicted 1 is "non-Indicted 1," at the bottom of the application form, the customer name column and signature column, and then read the forged mobile phone application form to the private document connected to the computer to the computer, and then, it can be known that the defendant sent the image file to Non-Indicted 2, who is aware of the forgery to the fact by e-mail, and viewed it on the computer screen on the new application form. Thus, even if the defendant used the forged mobile phone application form, it cannot be seen as a forgery of the video file on the computer screen.

Nevertheless, the court below determined that the charge of the uttering of a falsified document is not established on the grounds as stated in its reasoning. Thus, the court below erred by misapprehending the legal principles on the "exercise" in the crime of uttering of a falsified document, and such illegality has affected the judgment.

3. Conclusion

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 Jeon Soo-ahn (Presiding Justice)