[1] In a case where a person deceptions a court to acquire property from a third party who has a lineal blood relation, whether a punishment shall be exempted by the case of a criminal in fraud (affirmative)

[2] The purport of demanding the specification of the facts charged under Article 254(4) of the Criminal Procedure Act, and the specific degree of the facts charged / Where the forged document is seized and existing, the specific degree of the facts charged concerning the crime of forging documents / The specific degree of the facts charged concerning the crime of forging documents

[3] In a case where the prosecutor's application for changes in indictment is within the scope of "the identity of the facts charged", whether the court should permit the application (affirmative), and the standard for determining the identity of the facts charged

[4] The meaning of the principle of free evaluation of evidence / Method of evaluating the probative value of indirect evidence / The limit of the principle of free evaluation of evidence in a criminal trial and the meaning of "reasonable suspicion" in the formation of a conviction

[5] Requirements for establishing a public contest relationship / The degree of proof for recognizing a public contest relationship (=the strict proof) in a public contest, and the method of proof in a case where the defendant denies a public contest

[1] Articles 328(1), 347, and 354 of the Criminal Act / [2] Article 231 of the Criminal Act, Article 254(4) of the Criminal Procedure Act / [3] Article 298(1) of the Criminal Procedure Act / [4] Articles 307 and 308 of the Criminal Procedure Act / [5] Article 30 of the Criminal Act, Article 308 of the Criminal Procedure Act

[1] Supreme Court Decision 2014Do8076 Decided September 26, 2014 / [2] Supreme Court Decision 2008Do11042 Decided June 11, 2009 (Gong2009Ha, 1158), Supreme Court Decision 2009Do2337 Decided June 11, 2009, Supreme Court Decision 2016Do2696 Decided April 29, 2016 (Gong2016Sang, 722) / [3] Supreme Court Decision 2012Do14097 Decided September 12, 2013, Supreme Court Decision 2017Do7444 Decided April 7, 2017 / [4] Supreme Court Decision 2009Do9475 Decided April 13, 209, Supreme Court Decision 2005Do97497 Decided September 29, 2014

Defendant 1 and one other

Defendants

Han-ro Law Firm et al.

Suwon District Court Decision 2015No3352 decided April 20, 2016

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to Suwon District Court Panel Division. Defendant 2’s appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed by Defendant 2).

1. As to Defendant 1’s ground of appeal

A. As to the attempted fraud against the victim non-indicted 1

Since the legal interest in fraud is a property right, it cannot be the victim unless the person has property right in fraud. Therefore, in the case of deceiving a court from a third party and deceiving a property from a third party, the court that is the defrauded cannot be the victim and the third party who has acquired the property is the victim. Therefore, in case where a third party who is the victim and a person who commits fraud are related to a lineal blood relative, the punishment shall be exempted in accordance with Article 328(1) of the Criminal Act applied mutatis mutandis by Article 354 of the Criminal Act (see Supreme Court Decision 2014Do8076, Sept. 26, 2014, etc.).

According to the records, Nonindicted Party 1 and Defendant 1, who is the victim of this part of the facts charged, are in the relationship of lineal blood relative between the father and the father, so the lower court should have exempted this part of the facts charged by applying the provisions of Articles 354 and 328(1) of the Criminal Act.

Nevertheless, the lower court did not exempt the Defendant from punishment for this part of the facts charged, and found the Defendant guilty, and determined the remainder of the facts charged together with the crime. In so doing, the lower court erred by misapprehending the legal doctrine on the scope of application of the crime of attempted fraud to the victim and relatives, thereby adversely affecting the conclusion of the judgment.

B. As to each attempted fraud against the victim Nonindicted 2 and Nonindicted 3

According to the provisions of Articles 354 and 328 of the Criminal Code, a crime of attempted fraud between lineal blood relatives, spouse, relatives living together, family members living together, or their spouse shall be exempted from punishment, and other relatives may institute a public prosecution only upon a complaint. And the period for filing a complaint is six months from the date on which they become aware of a criminal under Article 230(1) of the Criminal Procedure Act.

Even according to the entries in each part of the facts charged, since the victim Nonindicted 2 and Nonindicted 3 are siblings of Defendant 1, this part of the facts charged constitutes a case where the prosecution can be instituted only upon legitimate accusation of the victims.

However, according to the records, although the victim non-indicted 2 appears to have known that he/she was a criminal defendant 1 around June 7, 2012 or around October 2012 at the latest, the victim non-indicted 2 was aware of the fact that he/she filed a criminal complaint on September 4, 2013 after the lapse of six months from the investigation record (Article 1, 21, 112, 12, 121, 255, and 433 of the investigation record), and the victim non-indicted 3 had no fact of filing a criminal complaint on September 4, 2013. Since each part of the prosecution procedure becomes null and void in violation of the provisions of the Act, each part of the prosecution procedure should be dismissed in accordance with Article 327 subparagraph 2 of the Criminal Procedure Act.

Nevertheless, the lower court determined otherwise that each of the facts charged was lawful or that there was a complaint by the person who filed a complaint. In so doing, the lower court erred by misapprehending the legal doctrine on the period of complaint subject to victim's complaint or the requirements for prosecution, thereby adversely affecting the conclusion of the judgment.

C. As to the ground of appeal on the fabrication of each private document and the uttering of each private document

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court is justifiable to have determined that all of the charges were guilty on the grounds indicated in its reasoning, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

D. Scope of reversal

Of the judgment below, Defendant 1’s attempted fraud should be reversed. Since the above reversal part and the remaining guilty part of Defendant 1 are concurrent crimes under the former part of Article 37 of the Criminal Act, one sentence is imposed, and the part of the judgment below as to Defendant 1 among the judgment below should be reversed in its entirety.

2. As to Defendant 2’s ground of appeal

A. As to the assertion of misapprehension of the legal principle as to the specification of the facts charged and amendment procedures

According to Article 254(4) of the Criminal Procedure Act, “The facts charged shall be stated clearly with the date, time, place, and method of the crime.” The purport of the Act requiring the specification of the facts charged is to facilitate the exercise of the defendant’s right to defense. As such, it is sufficient that the facts charged are stated to the extent that it is distinguishable from other facts by comprehensively taking account of these elements, and even if the date, place, etc. of the crime are not explicitly stated in the indictment, it cannot be deemed that the outline of the indictment is inevitable in light of the nature of the crime, and it does not interfere with the defendant’s exercise of his/her right to defense. As long as the forged documents are seized in the case at issue, it shall be deemed that the same time, place, method, etc. of the crime are identical to those stated in the indictment to the extent that it can support the alteration of the facts charged, such as the recognition of the identity of the crime, prevention of double prosecution, and promotion of prescription, etc. (see Supreme Court Decision 200Do128, Jun. 18, 2009).

According to the records, the original charges against Defendant 2 are as follows: “The Defendant 1 got out of 00,000,000 won for each of the above facts charged.” The Defendant 2 conspired with Nonindicted 2 to make up for the following 00,000 won of the deceased’s own building on 2005 and to make up for the 40,000,000 won of the deceased’s own building on 10,000,000,000 won of the deceased’s own name and 40,000,000 won of the deceased’s own name and 0,000,000 won of the deceased’s own name and 0,000,000 won of the deceased’s own name and 10,000,000 won of the deceased’s own name and 20,000,000 won of the deceased’s own name and 4,000,000 won of the deceased’s own name and 20.

Examining in light of the aforementioned legal principles, among the facts charged in the instant case against Defendant 2, the initial facts charged and the modified facts charged were specified, and the prosecutor’s application for modification of indictment was lawful, and the court below’s decision that recognized the date and time of each crime within the scope of the modified facts charged is justifiable. Contrary to what is alleged in the grounds of appeal, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal principles on the specification of

B. As to the remaining grounds of appeal

Article 308 of the Criminal Procedure Act, which provides for the free evaluation of evidence, is due to the fact finding. As such, a fact-finding court with exclusive authority to determine evidence ought to take account of the perception obtained in the trial proceedings in fact-finding and the evidence examined. In a criminal trial, indirect evidence may not be necessarily formed by direct evidence, and indirect evidence may not be individually and separately assessed, and it shall undergo an adequate and contradictory argument in all respects. The probative value of evidence is left to the free evaluation of judges, but the degree of the formation of evidence should be consistent with logical and empirical rules, and it is not likely that there is no reasonable doubt to find guilt in a criminal trial (see, e.g., Supreme Court Decision 200Du1447, Apr. 19, 200). It does not require a reasonable doubt to the extent that there is no reasonable doubt as to the extent of excluding all possible doubt, and it does not constitute a reasonable doubt that there is no reasonable doubt as to the facts that there is no probative value in a criminal trial (see, e.g., Supreme Court Decision 97Da197, supra).

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, it is justifiable to have determined that Defendant 2 forged the instant payment guarantee note and written agreement, and Defendant 1 was guilty of all the modified charges against Defendant 2 on the ground that Defendant 2 participated in each of the above forged charges. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by failing to exhaust all necessary deliberations, by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, by exceeding the burden of proof, presumption of innocence, recognition of the authenticity of documents, joint principal offender, public trial-oriented principle, omission of judgment, etc.

3. Conclusion

Therefore, the part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. Defendant 2’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)