The case holding that it was beyond the scope of the trial to find the defendant guilty of the above facts charged on the ground that the indictment to the effect that a false ductal statement concerning the present state of land was prepared does not issue the receipt of the ductal trees on the land, although the receipt of the ductal trees

The case holding that the judgment of the court of the first instance that affirmed the judgment of guilty on the ground that the defendants did not err in preparing and holding that all lots of land are planted as if the night tree were planted in accordance with the principle of presumption of well-known trees, and that the court below did not indicate the actual receipt of the night tree in all lots of land, on the ground that it is not erroneous for the court below to prepare and exercise a false name tag, on the ground that the defendants did not indicate the actual receipt of the night tree in the bill of indictment, and even though each lot of land has a phenomenon prior to its land category, there are not less than 20 years of night tree planting in all lots of land and there are no other species of trees, and the quantity or completion of the present shape of the forest is planted in about 20 years of night tree planting in each lot of land.

Articles 254 and 298 of the Criminal Procedure Act

Supreme Court Decision 88Do1691 delivered on October 10, 1989 (Gong1989, 1708) 90Do2037 delivered on December 26, 1990 (Gong1991, 676)

Defendant 1 and one other

Defendants

Attorney Jeong Tae-tae et al.

Gwangju High Court Decision 90No855 delivered on August 16, 1991

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

Defendant 1’s grounds of appeal and Defendant 2’s attorney-at-law’s appeal are examined.

Defendant 2’s attorney Kim Jong-chul’s supplemental appellate brief is not timely filed, so it is considered to the extent it supplements the grounds of appeal as stated in the above appellate brief.

1. The facts recognized by the first instance court are as follows:

A. On July 10, 1989, Defendant 1 prepared a land category change report on the 15 parcel of land except for the 6,10,15-1 through 18, 15, excluding the 6,10,15, from among the 15 parcels of land in front-gun, North Korea, on July 10, 1989, following the application for land category change to forest land category change to 8,561 square meters, Defendant 1 prepared a land category change report on each of the above land. Defendant 1 submitted a false land category change report on the ground that the shot, shot, shot, stove, stoves, stoves, stoves, stoves, stoves, stoves, stoves, stoves, and stoves on each parcel of land and submitted a false land category change to the 10-year forest land category and 5-year forest land category change.

B. Defendant 2 received a request from Nonindicted Party 1 on May 16 of the same year to issue a confirmation board to change the category of forest land as to the above land, and the purpose of exercising the above 15 parcel is to make a false statement on the business trip name of the official document, stating that only about 20-year-old night trees are planted on each parcel, even though the status of tree planting on the above 15 parcel was the same, and to use it to the vice-presidentials on the surface of the crimes committed in the North Korean territory.

2. The judgment of the court below

The lower court rejected the Defendants’ grounds for appeal that the Defendants’ failure to confirm the business trip at the site was the same as they were, as follows.

A. As to the restoration of the land of this case to forest land

(1) After examining whether the application for land category change and its processing process are consistent with the requirements of a petitioner on the spot and the circumstances of the local land, the staff in charge of the cadastral division conducted an investigation into whether the area of each land is consistent with the intellectual relation laws and regulations, and conducted an investigation into the matters to be heard by nearby residents. After collecting reference materials related to the application for land category change at the Eup/Myeon office located in the land in question, and preparing a duplicate statement and obtaining approval through consultation with the relevant department, and arranging the land cadastre and the cadastral map after obtaining approval. Since the method of on-site investigation is not specifically prescribed, the local situation should be implemented by the public official in charge, referring to the local situation. The practice ordinarily takes into account the local survey method. In other words, in determining the land category, the principle of presumption of well-known (the main classification), while the actual purpose of the land category differs, the owner is the same and the area of each land is relatively small, or a road or a ditch installed for convenience of the land in question should be applied only to the case where the land category of the main land can be determined by applying the principle.

(2) However, it is difficult to confirm the land of this case by parcel the adjacent land with 28-2 and 500 mar, which is a 350 to 400m mar, and the slope angle was in the form of 30∑ to 40m mar, and the land of this case was not in the shape of a dry field at all visible to be seen as forest, and no farmland tax was imposed during that period.

(3) As a result of the on-site investigation, Defendant 1 appears to have been a tree under Article 6 subparag. 5 of the Enforcement Decree of the Cadastral Records. Defendant 1 also deemed to have been a tree. As such, Defendant 1 deemed to have formulated the instant mold of land as a forest and field. The said land was also deemed to have been a tree. The local tree condition is also 6 weeks, 5 weeks, 10-4, 6 weeks, 15-5, 6-1, 25-7, 25-7, 25-7, 25-1, 25-2, 25-2, 25-2, 3, 25-1, 25-2, 25-1, 5-2, 5-1, 5-2, 5-2, 5-2, 5-1, 5-2, 5-2, 5-2, 25-9, 25-2, 25-1, 5-, 1, 5-, 1, 3.

(4) In addition, since the facts are recognized as the same, the Defendants’ appeal is justified with regard to the fact that the instant land is deemed as forest and field and only the instant land is entered into the night tree as the species of trees.

B. However, the statement of receipt of night tree is related to whether or not the substitute farmland creation cost is exempted or the procedure thereof is related to the change of land category, and this part of this case was changed without paying the substitute farmland creation cost for the land in this case. According to the statement of Nonindicted Party 1 at the police station, according to the statement of Nonindicted Party 1 at the police office, the category of the land in this case was changed at the Gun office, and the delivery was made after obtaining a written confirmation that at least 20 years of night trees are planted within the same place at the Gun office. Thus, it was issued by Defendant 2, the leader of the Myeon office, requesting the issuance of a written confirmation of such contents. As such, it can be seen that the statement of receipt was made at the request of the dong, and it was found that the Defendants knew or knew at least at the time of the preparation of the above fact that the trees were planted at night on March 3, 1976.

Therefore, the defendants' arguments about this point cannot be accepted, and as a whole, the preparation and use of false official documents cannot be exempted.

3. Judgment of party members

A. According to the records, according to the testimony of the first instance court witness, Maju-gu, Kim Dong-dong, the testimony of Jinjin-gu, his prosecutor's office or police, or the result of on-site inspection conducted by the first instance court, the situation of the land of this case can be seen as identical to the above 2-A, recognized by the court below. In light of the type and planting of trees, since the land of this case appears to be a forest rather than a dry field, it is reasonable to classify it as a forest under Article 6-5 of the Enforcement Decree of the Intellectual Property Act, since the land of this case is deemed to be a forest rather than a dry field. In addition, considering all of the land of this case, the main species of this case are recognized as night tree, and even if the defendants regarded the land of this case as a forest and field without classifying it by lots, it does not show that the defendants was aware that there was a false public document about this point.

B. Furthermore, it cannot be acknowledged that Nonindicted 1 requested a false statement on the receipt of night tree with only the statement of Nonindicted 1 in the preparation of the health assistant judicial police officer, and this point is also viewed in light of the part of the statement that Nonindicted 1 properly handled the instant land in the course of changing the category of the instant land into forest land (the investigation record No. 189, Nonindicted 1’s second statement about Nonindicted 1), and there is no evidence to prove otherwise that the Defendants received the said night tree for less than 20 years at the time of the preparation of the life assistant book and the Defendants knew or knew of it.

C. Meanwhile, according to the testimony of the first instance court witness, the former owner of the land in this case, the prosecutor's office, and the police's statement, that the government's 20 years before the present 1970-2 of the 1970-3-2 of the 30-3-2 of the 1970-3 of the 1,00-3 of the 4-2 of the 4-2 of the 4-2 of the 4-2 of the 4-2 of the 20-3-2 of the 4-2 of the 197-2 of the 1970-3 of the 4-2 of the 197-2 of the 4-2 of the 197-2 of the 4-2 of the 4-2 of the 197-2 of the 3-2 of the 4-3-year 3-year 3 of the 4-year 3-year 3 of the 2-year 3-year 3 of the 2-year 2 of the 2-year 3-year 3 of the 3-.

According to the testimony of the witness Kim Jae-jin at the court below's testimony, there was appraised the planting year of the night tree at the police's request, and the receipt of the night tree was 15 years, and 2 years after the growth from the nursery was confirmed to have been 13 years before that year. However, even according to his statement, it was not determined whether the receipt of the night tree subject to appraisal was the middle size compared with other night trees planted on the land of this case, and the receipt of the night tree 3gs and 3gs confirmed by the head of the Si/Gun/Gu office was confirmed to have been 21 years. According to the statement of the head of Si/Gun/Gu cadastral division at the head of Si/Gun/Gu cadastral division, it was confirmed that the receipt of the night tree subject to appraisal was 20 years since most night tree was present at the site when conducting a self-inspection at the head of Si/Gun/Gu cadastral division, and that it was proved that the receipt of 1gs among them was 10 years after that it was 2121 years's.

D. If the relation of evidence is as above, it cannot be concluded that all the night trees in the land in this case were planted on March 1976, and the average receipt of the planted night trees was not clear to a certain extent. Rather, the defendants confirmed on the spot when preparing a land category change report or a business trip mold, and they appear to have been 20 years since it was made to local residents, and in this case, they also seem to have been 20 years since the fact-finding survey on the farmland tax subject to the farmland tax in the Myeon office was written as above, and the defendants' arguments that the receipt of the night trees was merely stated on the Myeon office for 20 years, and it is hard to find that the defendants had the awareness that the contents of each Myeon name report were false.

E. Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to preparation of false official documents and the crime of uttering, or in the misapprehension of legal principles as to facts against the rules of evidence, and there is a reason to discuss.

F. In addition, the summary of the facts charged in this case differs by parcel from the land in this case, so that the defendants are able to conduct an investigation into the original part of the land in this case, and even though each parcel has a phenomenon before the land category, there are no different species of trees and there are no other species of trees in all parcels (Defendant 1) and there are about 20 years of night trees in each lot (Defendant 2), and prepare and exercise each false name tag, and the first instance court also recognized that the defendants prepared and exercised a false name tag as if only 20 years of night trees were planted in all lots of land in this case despite the actual use of the land in this case and there were only 20 years of night trees and only 20 years of night trees were planted in all lots of land in this case, and the court below did not err in preparing a name tag as if all lots of land were planted at night in accordance with the principle of presumption of widely known trees, and it did not appear that the defendants did not have any actual risk of receiving trees in this case's indictment or defense without any alteration.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-chul (Presiding Justice)