[1] Whether "a conciliation protocol" prepared in conciliation proceedings under the Judicial Conciliation of Civil Disputes Act constitutes "the original notarial deed" which is the object of a crime of false entry in the original notarial deed (negative)

[2] The case holding that the court below erred in the misapprehension of legal principles in finding that the above protocol constitutes the original copy of a notarial deed and convicted the judge of the charges of false entry of the original copy of a notarial deed, by submitting a false application for mediation to the court and allowing the judge to enter false facts in the protocol

[1] The crime of false entry in the original copy of a notarial deed under Article 228 (1) of the Criminal Code is established when a public official makes a false report against the truth and makes a false statement in the original copy of a notarial deed inconsistent with the substantive relation. The original copy of the notarial deed, which is the object of the above crime, must be an official document that can enter false facts by a false report in its nature. The conciliation system under the Judicial Conciliation of Civil Disputes Act, in principle, is a system which causes compromise by recommending and arranging a conciliation judge, etc. to make mutual concession and mutual agreement among the parties in consideration of all the circumstances, regardless of the purport of the applicant's application. Thus, the conciliation protocol prepared in the conciliation procedure cannot be deemed as an official document that can not be deemed as a false statement by a false report, and it cannot be deemed as an original copy of a notarial deed.

[2] The case holding that the court below erred in the misapprehension of legal principles in finding that the above protocol constitutes the original copy of a notarial deed and convicted the judge of the charges of false entry of the original copy of a notarial deed, by submitting a false application for mediation to the court and allowing the judge to enter false facts in the protocol

[1] Article 228(1) of the Criminal Act / [2] Article 228(1) of the Criminal Act

Defendant 1 and one other

Defendant 1 and Prosecutor

Law Firm Epis et al.

Suwon District Court Decision 2009No1042, 3590 decided February 11, 2010

The conviction part of the judgment of the court below against Defendant 1 is reversed, and that part of the case is remanded to Suwon District Court Panel Division. The prosecutor's appeal is dismissed in entirety.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal

A. As to the assertion of misapprehension of the legal principle as to the crime of false entry in the authentic deed original

According to the reasoning of the judgment below, the court below determined that it is reasonable to view that the protocol constitutes the original notarial deed which is the object of the crime of false entry in the original notarial deed, and found Defendant 1 guilty of all the charges of false entry in the original notarial deed with respect to Defendant 1, who submitted a false application for mediation to the court and caused the judge to enter false facts

However, the crime of false entry in the original copy of a notarial deed under Article 228 (1) of the Criminal Act is established when a public official makes a false report contrary to the truth and makes a false statement inconsistent with the substantive relation concerning the matters proved in the original copy of a notarial deed. The original copy of a notarial deed which is the object of the above crime must be an official document that can enter false facts by false report in its nature. The conciliation system under the Judicial Conciliation of Civil Disputes Act, in principle, is an institution which causes compromise by soliciting and arranging a conciliation judge, etc. to give mutual concession to the parties in consideration of all the circumstances, regardless of the purport of the applicant's application. Thus, the conciliation protocol prepared in the conciliation procedure cannot be deemed as an official document that can contain false facts by a false report, and it cannot be deemed as an original copy of a notarial deed. However, the court below's judgment is erroneous in the misapprehension of legal principles as to the original copy of a notarial deed, which affected the conclusion of the judgment.

B. As to the assertion of misapprehension of the legal principles on the violation of Mountainous Districts Management Act

According to the evidence duly adopted and examined by the first instance court, Defendant 1 submitted a false business plan and farming plan to the competent authority for cultivating spawal and planting spawal and planting spawal trees to facilitate sale of forests as if they were created as construction sites. Although there was no intention to convert them into the above forests by planting spawal or ornamental trees, among the above forests, there was no intention to convert them into the above forests by planting spawal or ornamental trees, the court below held that the act of obtaining permission for conversion of a mountainous district by submitting a false business plan and farming plan with the purport of cultivating spawal and planting spathal trees and planting spathal trees to the competent authority for conversion of a mountainous district after obtaining permission for conversion of a mountainous district, and that the act of obtaining permission for conversion of a mountainous district by submitting false data such as the purpose of business or plan to obtain permission for conversion of a mountainous district under Article 53 subparagraph 1 of the Mountainous Districts Management Act constitutes an act of obtaining permission for conversion of a mountainous district by fraudulent means.

2. As to the Prosecutor’s Grounds of Appeal

As seen earlier, insofar as the protocol cannot be seen as the original copy of a notarial deed, it is apparent that the exercise of the protocol of mediation cannot constitute an offense of uttering of the original notarial deed. As such, the Prosecutor’s ground of appeal that the Defendants’ act of having the protocol of mediation kept in the court stating false facts should be punished as an offense of uttering of the original notarial deed cannot be accepted.

3. Conclusion

Therefore, among the part of the judgment of the court below against Defendant 1, the part convicting Defendant 1 of the fraudulent entry of each authentic deed in the authentic deed original shall be reversed. Since the court below sentenced this part to the concurrent crimes under the former part of Article 37 of the Criminal Act and the violation of the Management of Mountainous Districts Act and the concurrent crimes under the former part of Article 37 of the Criminal Act, it did not decide on the remaining grounds of appeal by Defendant 1, the whole conviction part of the judgment below against Defendant 1 shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination, and all of the appeals by the prosecutor against the Defendants shall be dismissed.

Justices Park Si-hwan (Presiding Justice)