[1] Whether an appellate court's measure that did not include part of the detention days before the court of first instance in the original sentence is unlawful (negative)

[2] The case where the court shall recognize ex officio the facts constituting a crime different from those stated in the indictment without changing the indictment

[3] The case reversing the judgment of the court below that acquitted the defendant on this part of the facts charged on the ground that the defendant, accomplice, and the above third party's conspiracy should have been recognized ex officio without any changes in the indictment, in case where the defendant committed the crime of forging a private document in collusion with his accomplice, but the defendant was indicted, but the defendant was found to have committed the crime of forging a private document as a result of the examination of evidence as a result of the defendant's assertion that he forged a private document by a third party

[1] Whether the detention days before the sentence is to be included in the whole or only a part of the detention days before the sentence is made belongs to the free discretion of the court of judgment. Thus, even if the appellate court reverses the judgment of the court of first instance and renders a new sentence, it cannot be deemed unlawful even if part of the detention days before the sentence of the court of first instance was not included

[2] In a case where it is deemed that there is no concern about causing a substantial disadvantage to the defendant's right of defense in light of the progress of trial, the court may recognize ex officio the criminal facts different from the facts charged within the extent consistent with the facts charged even if the indictment was not modified, and in such a case, if punishment is not imposed on the grounds that the facts charged in comparison with the facts charged are serious and the indictment was not modified, it is recognized that the prompt discovery of substantial truth by proper procedure goes against justice and equity in light of the purpose of the criminal procedure, such as the discovery of substantial truth, the court shall recognize ex officio such criminal facts.

[3] The case reversing the judgment of the court below that acquitted the defendant on this part of the facts charged on the ground that the defendant, his accomplice, and the third party's conspiracy should have been recognized ex officio without any changes in the indictment, in case where the defendant committed the crime of forging a private document in collusion with his accomplice, but the defendant was indicted, but the result of the examination of evidence was found to have committed the crime of forging a private document in collusion with his accomplice and the above third party as a result of the defendant's assertion that the third party forged the private document

[1] Article 57 of the Criminal Act / [2] Articles 254 and 298 of the Criminal Procedure Act / [3] Articles 254 and 298 of the Criminal Procedure Act

[1] Supreme Court Decision 97Do2109 delivered on October 10, 1997 (Gong1997Ha, 3550) / [2] Supreme Court Decision 2003Do1366 delivered on May 13, 2003 (Gong2003Sang, 1411) Supreme Court Decision 2003Do4027 Delivered on October 24, 2003

Defendant

Defendant and one other

Attorney Choi Han-chul

Seoul Southern District Court Decision 2004No1716-1, 2005No747, 1459 Decided November 4, 2005

Of the judgment of the court below, the part of the judgment excluding the part not guilty as to the preparation of qualification-based private documents and the display of qualification-based private documents on September 8, 2000 shall be reversed, and the part of the case shall be remanded to Seoul Southern District Court Panel Division. The remainder of the appeal by the prosecutor shall be dismissed.

1. We examine the Defendant’s grounds of appeal.

A. As to the assertion against the rules of evidence

As long as a legitimate representative director of a corporation has issued a check under his name, the validity of the check does not affect any change in the name of the representative director on the current account even if the check has not yet been issued. Examining the admitted evidence of the court below in light of the records, it is recognized that the Defendant in collusion with Nonindicted 2 who was appointed as a legitimate representative director on the current account, issued a check in his name, and then did not pay the check on the ground of the suspension of transaction despite the fact that the transfer of the representative director on the current account was made, so the court below recognized the liability for a crime under Article 2(2) of the Illegal Check Control Act, as alleged in the grounds of appeal, is justifiable, and contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the legal principles as to

In addition, according to the evidence adopted by the court below in light of the records, it is just that the court below found the defendant guilty of all the facts charged, such as the violation of the Illegal Check Control Act due to the issuance of the check in the name of Nonindicted Co. 3, the violation of the Act on the Control of Illegal Check, the crime of uttering of qualification-based private documents and mobile phone-related fraud, the crime of uttering of status-based private documents and the crime of attempted fraud related thereto, the crime of violation of the Punishment of Tax Evaders by the issuance of tax invoices in the name of Nonindicted Co. 1, the crime of uttering of forged public documents, the crime of uttering of forged public documents, and the crime of attempted fraud resulting therefrom, etc.

B. As to the assertion of misapprehension of the legal principle regarding inclusion in detention days before a judgment is rendered

Whether the number of detention days before a judgment should be included in the whole or only a part of the number of detention days before a judgment is rendered falls under the discretion of the court of the judgment. Thus, when the appellate court reverses the judgment of the court of the first instance and declares a new sentence, it cannot be deemed unlawful even if part of the number of detention days before the judgment of the court of the first instance is not included in the original sentence (see Supreme Court Decision 97Do2109, Oct. 10, 19

Therefore, the judgment of the court below is not unlawful on the ground that the part of the detention days prior to the pronouncement of the judgment of the court of first instance was not included in the original sentence in the case where the judgment of the court of first instance is reversed and the sentence of a new punishment is rendered after combining the three judgments of the court of first instance. The court below did not err by misapprehending the legal principles on the inclusion of the detention days prior to the

2. We examine the Prosecutor’s grounds of appeal.

A. On September 8, 200, as to the preparation of qualification-based private documents and the display of qualification-based private documents

Examining the admitted evidence of the court below in light of the records, since there is a lack of evidence to prove that LG019PC subscription contract and the sales contract for the installment of terminal device, which were September 8, 2000, made Nonindicted 4 as the principal and as the representative of the defendant, the court below's finding the defendant not guilty of this part of the facts charged against the defendant for the same reason is just fact-finding and judgment. The court below did not err by misapprehending the rules of evidence or by misapprehending the legal principles which found the facts erroneous in violation of the rules of evidence as alleged in the grounds of appeal.

B. As to the aiding and abetting private documents

(1) The summary of this part of the facts charged is that “The Defendant conspired with Nonindicted 5, thereby making Nonindicted 6 the owner of the Sinpo-dong (number omitted) in collusion with the seller around September 2001, and made Nonindicted 5 the buyer a forgery of a real estate sales contract with the content of the sales contract on the said land.”

According to the consistent statement, etc. by Nonindicted 5 of his accomplice Nonindicted 5, the lower court found the Defendant guilty on the ground that he participated in the act of exercising the above real estate sales contract and the crime of attempted fraud that he had attempted to acquire a loan from a national bank through the use of the above real estate sales contract, and found the part guilty, but acquitted the Defendant on the charge of aiding and abetting private documents on the ground that “the Defendant is insufficient to prove

(2) However, we cannot agree with the judgment of the court below for the following reasons.

(A) First, in light of the records, the evidence duly admitted by the court below can be recognized as follows.

Even before the instant case, the Defendant had been punished several times for committing the same type of crime as the instant case by forging the resident registration certificate, certificate of personal seal impression, and certificate of mortgage contract, etc. of the landowner, and acquiring a large amount of money in return. Nonindicted 5 met the Defendant that he was found a person to receive a bank loan by introduction from Nonindicted 7. At the time, Nonindicted 8 was the representative director, and Nonindicted 9 Co. 9, who was the head of the planning office, did not have any substantial value of assets, business performance or financing for the Defendant, and its executives and employees, including the Defendant, did not have any financial capacity due to bad credit standing, and thus, it was impossible for the said company or its executives and employees to purchase the land from Nonindicted 6.

The Defendant purchased land from Nonindicted 5 in the name of Nonindicted 5 and obtained a loan from the bank. On the Dog, the Defendant obtained the consent of Nonindicted 5 by proposing that a large amount of honorarium would be returned to Nonindicted 5 abroad, and the Defendant sent his personal information to Nonindicted 8, and Nonindicted 8 forged the instant real estate sales contract with Nonindicted 5 as the buyer and Nonindicted 6 as the seller. The Defendant used the forged real estate sales contract to obtain KRW 200 million from the national bank. The Defendant was committed in attempted to obtain a loan of KRW 200 million from the national bank using the forged real estate sales contract, and Nonindicted 5 was found guilty of the charge of forging private documents as the accomplice of the Defendant.

(B) According to the above facts, it is sufficiently recognized that the Defendant conspired with Nonindicted 8 and 5 to forge a real estate sales contract with Nonindicted 6.

In addition, according to the records, Nonindicted 8 appeared as a witness on the 17th trial date of the first instance court, and made a statement to the effect that “Nonindicted 8, while entering Nonindicted 9 Company and working together with the Defendant, intended to get a loan from the Bank by taking collateral operations against the Defendant, and upon request from the person who is the head of the dispatching Ban, the Defendant was entitled to make a real estate sales contract in this case.” The Defendant, along with the Defendant, has forged the real estate sales contract of this case. Nevertheless, it is difficult to view that the lower court’s rejection of such legal statement or its reason was not appropriate for the lower court to have determined that there was insufficient evidence to prove this portion of the facts charged, and that it was the same as the Defendant, or that it was difficult for the lower court to lawfully believe that the real estate sales contract of this case was inconsistent with the facts and the evidence.”

In addition, the Defendant asserts that “The representative director, who was employed as an employee of Nonindicted Company 9, purchased the land located in the military and obtained his/her consent by printing it as a collateral, and Nonindicted 5 was involved in a loan that was made by Nonindicted 8 and that it was known that the sales contract was forged later.” However, even according to the assertion itself, even according to the assertion itself, the fact that the sales contract of this case was prepared by the Defendant in physical coloring Nonindicted 5 and delivering his/her personal information to Nonindicted 8. Meanwhile, the Defendant’s vindication that Nonindicted 8 was aware that he/she actually purchased the land of this case from Nonindicted 6 was aware of the fact that the sales contract of this case was prepared only by delivering his/her personal information to Nonindicted 8. Meanwhile, the Defendant’s vindication that Nonindicted 8 was aware that he/she actually purchased the land of this case from Nonindicted 6 cannot be believed in light of the financial situation of the above company and its officers

(C) In a case where it is deemed that there is no concern that a substantial disadvantage to the defendant's exercise of his right to defense may be caused by the court in light of the progress of the trial, the court may, even if the indictment was not modified, recognize the criminal facts different from the facts charged ex officio within the scope consistent with the facts charged, to the extent that the identity of the facts charged is recognized. In such a case, if punishment is not imposed on the grounds that the facts charged in comparison with the facts charged for which the indictment was instituted is serious and that the indictment was not modified on the grounds that it was not modified, the court shall recognize the facts charged ex officio (see Supreme Court Decision 2003Do1366, May 13, 2003, etc.).

Although Nonindicted 8, who forged a real estate sales contract in this part of the facts charged, did not enter it as co-offenders, the record reveals that: (a) during the investigation of this case and the public trial process of this case, the Defendant recognized the fact that he colored Nonindicted 5 with Nonindicted 8’s instructions and delivered his personal information to Nonindicted 8; and (b) in this regard, the Defendant’s actual forgery of a sales contract continued to be Nonindicted 8; and (c) as the investigation record related to Nonindicted 8’s charge was copied and the statement was made by Nonindicted 8 in the court of first instance; (d) as seen earlier, the Defendant conspired with Nonindicted 8 to forge the sales contract in this case. Thus, the content of the Defendant’s assertion in the public trial process of this case is a single crime committed by Nonindicted 8, and the Defendant did not have been involved in it; and (e) in this case, the Defendant did not dispute the purpose of the Defendant’s criminal procedure with Nonindicted 8’s co-offenders in this case’s criminal trial without any alteration of the indictment.

(3) Therefore, the court below should have recognized that the defendant conspired with the non-indicted 8 and 5 to forge the real estate sales contract of this case ex officio without any changes in the indictment, but without doing so, sentenced the non-indicted 8 and 5 not guilty of this part of the charges. The court below erred by misapprehending the legal principles as to the scope of the facts contrary to the rules of evidence or the scope of adjudication without any changes in the indictment, which affected the conclusion

C. As to the aiding and abetting Official Documents

(1) The summary of this part of the facts charged is that “Around September 2001, the defendant conspired with Nonindicted 10, 11, and 8 and forged the original copy of the judgment in favor of the lawsuit claiming the performance of the procedure for ownership transfer registration filed by Nonindicted 11 against Nonindicted 12, etc., the owner of the land, such as Seo-gu, Seo-gu, Incheon, Seo-gu, Seoul.”

According to the statements, etc. by Non-Indicted 10 and 8 of the accomplice, the court below found the defendant guilty on the ground that he participated in the crime of attempted fraud committed by acquiring honorariums from a social welfare foundation (name omitted) through the event such as the original of the above written judgment forged by the defendant, and found the part guilty. However, there is insufficient evidence to regard the defendant as participating in the crime of forgery, such as the original of the above written judgment, and found the defendant not guilty on the ground that

(2) However, we cannot agree with the judgment of the court below for the following reasons.

(A) First, in light of the records, the evidence duly admitted by the court below can be recognized as follows.

As seen earlier, the Defendant had been punished several times for committing the same type of crime. The original of the instant judgment, etc. was forged by Nonindicted 8’s representative director, who was the head office of the planning office, around September 2001, as in the real estate sales contract with Nonindicted 6, as seen earlier. Nonindicted 11 was involved in the crime of forging the original of the instant judgment as the Defendant’s proposal, and Nonindicted 8, 10, and Nonindicted 11, who was the head office of the planning office, and the Defendant directly returned the instant land and confirmed the current status and market price, etc. In order to obtain loans by forging the original of the instant judgment at the office of Nonindicted 9. At first, Nonindicted 10 visited the head office of the National Bank to obtain loans by forging the original of the instant judgment, etc., and caused Nonindicted 10 to commit the instant crime of forging the instant judgment, and became final and conclusive as to the crime of forging the Defendant and the accomplice through a social welfare corporation.

(B) According to the above facts, it is sufficiently recognized that the Defendant conspired with Nonindicted 10, 11, and 8 to forge the original of the instant judgment.

It is true that the statements of accomplices are somewhat unclear as to who led to crimes such as fabrication of the original of the judgment in this case, and who actually forged the original of the judgment.

However, as to the fact that four persons, including the defendant, engaged in the crime of deceiving the money by forging the original copy of the judgment of this case, etc., the statements made by the prosecutor's office and the court of first instance at the prosecutor's office and the court of first instance are mutually consistent and do not seem to have any circumstances to suspect the credibility thereof. In relation to the facts charged, while Non-Indicted 11 and 8 did not actively participate in the case at the court of first instance while they stated the whole contents favorable to the defendant, they did not deny the fact that they participated in the crime of this case in which the defendant intended to acquire the money by forging the original copy of the judgment of this case, and Non-Indicted 10 also did not know about whether the defendant was involved in the crime of this case at the court of first instance, but it is evident that the court below rejected the defendant from being aware of the facts that the defendant conspired with the accomplice in collusion with each of the above statements at the prosecutor's office and the court of first instance, and each of the co-offenders at the court of first instance.

In addition, the Defendant alleged that “at the time Nonindicted Co. 9 was the head of planning office, and did not know about Nonindicted Co. 8’s order. However, the Defendant committed the crime of forging the original copy of the judgment of this case, etc., and the Defendant did not have participated in the crime.” However, the Defendant also stated that he was the accomplice who was aware of the whole crime including the forgery of the original copy of the judgment from the beginning; the size of Nonindicted Co. 9; the financial status of the above company and its officers and employees; the time of the crime of forging the original copy of the judgment of this case; the time of the crime of forging the original copy of the judgment of this case; the Defendant’s specific roles and actions expressed in the crime of forging the real estate sales contract in the name of Nonindicted Co. 6 in the same manner.

(3) Therefore, the court below found the defendant not guilty on the grounds that the evidence of this part of the facts charged is not sufficient, and thereby found the facts erroneous by violating the rules of evidence, thereby affecting the conclusion of the judgment.

3. Scope of reversal

As seen earlier, the prosecutor’s appeal on the part of the judgment of the court below regarding the charge of forging private documents and forging public documents is justifiable. The appeal on the guilty portion of the defendant and on the part of the prosecutor’s conviction on September 8, 200 on the same day, and on the part on the charge of not guilty on the crime of uttering of qualification-based private documents, shall be dismissed. However, one of the charges of this case prosecuted shall be sentenced to a single punishment. The conviction part of the judgment below shall be reversed and reviewed together with the acquitted portion on the crime of forging private documents and the crime of forging public documents (On the other hand, the court below erred in the violation of the Punishment of Tax Evaders Act by the Act No. 7321 of Dec. 31, 2004, by applying Article 11-2 (1) 1 through (4) of the current Punishment of Tax Evaders Act as amended by Act No. 7321, Jan. 1, 2005; the amended provisions of Article 12-1 to 4 of the current Punishment of Tax Evaders Act shall be issued or amended by Act.

4. Conclusion

Therefore, among the judgment of the court below, the part of the judgment excluding the non-guilty part as to the preparation of qualification-based private document as of September 8, 200 and the display of qualification-based private document as of the same day, is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. The remainder of the appeal by the prosecutor is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Shin Hyun-chul (Presiding Justice)