2017Do463 Unwritten notarial deeds originals, Unwritten notarial deeds originals

A

Prosecutor

Law Firm Haan, Attorneys Ha Young-kon

Seoul Eastern District Court Decision 2016No1115 Decided December 15, 2016

March 28, 2019

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

The grounds of appeal are examined.

1. The summary of the facts charged in this case is as follows.

A. The Defendant is the chairman of the Association B, an incorporated association (hereinafter referred to as the “Association”).

B. Around December 9, 2014, the Defendant held a regular meeting of the instant Association 2014 and dismissed directors and seven other directors, and passed a resolution to select directors from H and 8 (hereinafter “the instant resolution”). The articles of association of the instant association stipulate that the majority of the incumbent representatives shall attend the meeting and make a resolution with the consent of the majority of the representatives present. Of the 42 incumbent representatives, 23 persons present at the regular meeting of the representatives include 19 persons who are not qualified as representatives. On December 12, 2014, the Defendant prepared and submitted an application for registration of change of director of the incorporated association at the registry office of the Seoul East East District Court, Seoul District Court on the ground that the instant resolution was duly resolved at the said regular meeting of the representatives. Accordingly, a public official responsible for registration completed the registration of removal and appointment (hereinafter “instant change”).

2. A. The offense of false entry in the original of a notarial deed as provided in Article 228(1) of the Criminal Act is an offense against which the legal interest is to guarantee the public credibility of the official document recognized as special credibility, and which is a public official

A false report against the truth is established by making a false report to enter or register the false fact inconsistent with the special media records, such as the original of a notarial deed or the same electronic record. Thus, even if there is no matter stated in the original of a notarial deed, etc. or there is any defect that is invalid even if there is any external existence, such entry shall be detrimental to the false entry (see, e.g., Supreme Court Decisions 2005Do9402, Mar. 10, 2006; 2006Do8488, May 31, 2007).

B. The record reveals the following facts.

1) The articles of association of the Association of this case (hereinafter referred to as the “Association”) shall be comprised of one representative elected at the general meeting of the Association executives, the regional head office, and the local head office, upon the recommendation of a majority of the members of each regional head office, the chairperson shall be appointed by the board of directors upon the approval of the board of directors.

2) The general meeting minutes, etc. attached to the application for change of director of an incorporated association submitted by the defendant to the registry are indicated as the attendance of 23 directors among 40 registered representatives (the number of 42 persons indicated in the facts charged in the instant case) at the regular general meeting meeting of 2014 of the instant association. The 23 members present are three directors (the defendant, Z, AA), 13 regional chief directors (D, E, E,F, G, H, H, I, J, L, AB, AC, N,O, NA, NA, 7 temporary representatives (P, Q, R, S, T, U, V), and 7 temporary representatives (the number of 23).

3) According to the instant resolution, the director X, dismissed by the instant resolution, stating that 11, excluding two (AC, AD), from among 13 (13) members of the regional headquarters, is not qualified as representatives, and the Defendant also stated that the said 11 member was not qualified as members of the instant Association. The Defendant was dismissed on November 24, 2014, on the grounds that, according to the instant Association’s articles of association, “a case of ratification for appointment of heads of regional headquarters headquarters” was presented to the board of directors of the instant Association, but failed to submit basic data that could have known that he was engaged in the marriage brokerage business

4) The articles of association of the instant association did not stipulate provisions concerning temporary representatives, and the Defendant stated that seven temporary representatives did not acquire the qualification of members of the instant association.

5) The Defendant was aware of the lack of qualification as a representative because the head of the regional headquarters, 11, and 7 temporary representatives, who did not obtain the qualification as a member of the Association, failed to complete the procedures prescribed in the articles of association. In light of the aforementioned legal principles, the instant resolution was inappropriate for the 18 persons among 23 persons present at the meeting, who failed to meet the quorum, and the instant registration of modification was inappropriate, and even if there were external existence of the change, constitutes a false entry. The Defendant appears to have sufficiently recognized this. The Supreme Court ruling cited by the Defendant is inappropriate to be invoked in the instant case due to different issues.

D. However, the lower court, on the grounds indicated in its reasoning, determined that it is difficult to readily conclude that the Defendant filed a false report and exercised it on the registry, which is the original copy of a notarial deed, and upheld the first instance judgment that acquitted the Defendant of the facts charged of this case. In so determining, the lower court erred by misapprehending the legal doctrine on the crime of false entry in the original copy of a notarial deed and the crime of uttering of the original copy of a notarial deed, thereby adversely affecting the conclusion of the judgment.

3. 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 Cho Jong-hee

Justices Kim Jae-in

(1) The chief of the Supreme Court;

Justices Lee Jae-hwan