The standard for determining whether the act of preparing a document by the representative director of a corporation constitutes the foregoing Article (i.e., whether the authority to prepare) and, in a case where the representative director prepares a document in the name of the corporation by falsity or by abusing his/her power of representation, whether such act constitutes the crime of preparing a document in the name of the corporation or of forging a private document (negative)

Articles 214(1), 215, 231, and 232 of the Criminal Act

Supreme Court Decision 2006Do2016 Decided November 27, 2008 (Gong2008Ha, 1820), Supreme Court Decision 2008Do7836 Decided December 24, 2008, Supreme Court Decision 2010Do1040 Decided May 13, 2010 (Gong2010Sang, 1184)

Defendant

Defendant

Law Firm Civil Law Firm, Attorneys Dun-ju et al.

Seoul Central District Court Decision 2014No110 decided December 12, 2014

The part of the judgment below regarding the forgery of securities, the uttering of forged securities, the fabrication of private documents, and the uttering of falsified documents is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court. The remaining grounds of appeal are dismissed.

1. We examine the grounds of appeal as to forging securities and exercising forged securities.

(1) Since the subject to which the intention or concept expressed in the document prepared by the representative director in the manner of representing his representative qualification belongs is a stock company that is not an individual representative director, the nominal owner of the document shall be deemed a stock company. Therefore, whether the act of preparing the document constitutes the aforementioned Article shall be determined depending on whether the originator has the authority to lawfully prepare the document in the name of the stock company, and it shall not be determined in accordance with whether the document was delegated or approved by the person who is indicated as the representative director (see Supreme Court Decision 2008Do7836, Dec. 24, 2008).

The legitimate representative director of the original corporation has the authority to do all judicial or extra-judicial acts with respect to the business of the corporation. Thus, in principle, the act of the representative director to prepare a document under the name of the corporation does not constitute the preparation of qualification documents or the aforementioned Article. This also applies where the content of the document is made for the purpose of promoting his/her own or a third party’s interest by false or abusing the power of representation (see Supreme Court Decision 2010Do1040, May 13, 2010).

This legal doctrine applies likewise to cases where a representative director of a corporation prepares securities, such as promissory notes, in a manner that represents the representative status.

(2) The summary of this part of the facts charged is as follows.

On July 2, 2012, according to the proposal of Nonindicted 2, which was newly appointed by the Defendant as the joint representative director of Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) around July 2, 2012, the Defendant issued a promissory note in the name of Nonindicted Co. 1 and received authentication through Nonindicted 5, which is an employee of Nonindicted Co. 1’s joint representative director and a certificate of personal seal impression, in order to secure the claim against Nonindicted Co. 3 and Nonindicted Co. 1 who was in dispute with Nonindicted Co. 1 due to the balance of the transfer proceeds.

Accordingly, around July 2, 2012, Non-Indicted 2 entered “Non-Indicted 6 Co., Ltd.,” “One billion won” in the column for payment of the promissory note in the name of the addressee of the promissory note in the name of the non-Indicted 2, “Non-Indicted 6 Co., Ltd.,” “One billion won”, “The date of issuance” in the name of the issuer, “Non-Indicted 1 Co., Ltd., and Non-Indicted 4,” etc., and affixed a seal on the name of Non-Indicted 4. Accordingly, in collusion with Non-Indicted 2, the Defendant forged one promissory note in the name of Non-Indicted 1 Co., Ltd.

Then, on July 16, 2012, Non-Indicted 2 presented as if a notary public located in Seocho-gu Seoul Metropolitan Government, Non-Indicted 7 Law Firm, a non-indicted 8, who was aware of the forgery, the above-mentioned promissory note was actually issued. Accordingly, the Defendant conspired with Non-Indicted 2 and exercised the forged securities.

(3) The lower court determined that, in order for Nonindicted 2 to prepare a promissory note indicating Nonindicted 4, who is the other representative director of Nonindicted Company 1, Nonindicted 2’s individual, specific delegation, or consent of Nonindicted 4 is required, and that the preparation of the Promissory note in collusion with the Defendant and Nonindicted 2 constitutes a securities offense, and that the presentation of the Promissory Notes constitutes an offer of forged securities.

(4) However, the lower court’s determination is difficult to accept.

Even according to the reasoning of the judgment below, Non-Indicted 2 is the representative director of Non-Indicted 4 as well as Non-Indicted 1 corporation. Thus, barring any special circumstance, it is authorized to independently prepare the Promissory Notes in the name of Non-Indicted 1 corporation with respect to the business of Non-Indicted 1 corporation. Accordingly, in light of the legal principles as seen earlier, Non-Indicted 2’s legitimate authority to prepare the Promissory Notes in the name of Non-Indicted 1 corporation. Thus, even if Non-Indicted 4 made a false statement as if Non-Indicted 4 issued the Promissory Notes on behalf of Non-Indicted 1 corporation, it is not a crime of forging securities, and it is not a crime of uttering of forged securities. Further, Non-Indicted 2 prepared the Promissory Notes in the name of Non-Indicted 4 as the representative director of Non-Indicted 1 corporation as well as a comprehensive delegation or approval, and it cannot be deemed that the Promissory Notes in this case can be prepared lawfully without being individually and specifically delegated or approved by Non-Indicted 4.

Nevertheless, the lower court’s determination that the crime of forging securities and the crime of uttering of forged securities constitute the crime is erroneous by misapprehending the legal doctrine on the holder of securities, the crime of forging securities, and the crime of uttering of forged securities, which was prepared by indicating a stock company and its representative.

2. We examine ex officio the grounds of appeal as to the fabrication of private documents and the uttering of private documents.

(1) The summary of this part of the facts charged is as follows.

As seen earlier, the Defendant issued a promissory note in the name of Nonindicted Co. 1 in accordance with Nonindicted Co. 2’s proposal and had it notarized.

Accordingly, in order to have the Promissory Notes notarized at the same date, time, time, place, and place as indicated in the facts charged regarding the exercise of the aforesaid forged securities, Nonindicted 2 stated in the letter of delegation “I will delegate all the authority to commission the preparation of a notarial deed stating that I would have no objection to compulsory execution if the following payment of the Promissory Notes is in arrears.” In the name column of the authorized person of the letter of delegation printed, Nonindicted 2 stated “Nonindicted 2” in the face value column, “one hundred billion won” in the face value column, “Nonindicted 6 Co., Ltd.,” in the payee column, and the name column of the delegating, “Nonindicted 4, Nonindicted 1 Co., Ltd., Ltd.,” and affixed Nonindicted Co. 1’s corporate seal impression on Nonindicted Co. 4’s name. Accordingly, in collusion with Nonindicted 2, the Defendant forged one letter of delegation with Nonindicted Co. 1

Then, Nonindicted 2 delivered the forged power of representation to Nonindicted 8, who was aware of the forgery at the same time and at the same place. Accordingly, the Defendant conspired with Nonindicted 2 and exercised the forged power of representation.

(2) Although the lower court upheld the first instance court’s judgment that found the Defendant guilty of this part of the facts charged, it is difficult to accept the said judgment by the lower court on the grounds that it did not examine the facts charged with forging securities and exercising forged securities.

Nevertheless, the lower court erred by misapprehending the legal principles on the nominal holder of a document prepared by indicating a stock company and its representative, the crime of forging private documents, and the crime of uttering of private documents, thereby adversely affecting the conclusion of the judgment.

3. We examine gambling.

Although the Defendant appealed against the part of the judgment below regarding gambling, the Defendant did not state the grounds for appeal in the petition of appeal, and there was no statement in the appellate brief on the grounds of objection.

On the other hand, the court below sentenced a fine separately from the crime of forging the remaining securities, the crime of uttering of forged or falsified securities, the crime of forging private documents, and the crime of uttering of falsified documents, which was found guilty, and thus, the part of gambling should be separately treated separately from the remaining part of the lawsuit (see Supreme Court Decision 2008Do11921, Apr. 23, 2009).

4. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal, the part of the judgment below regarding the fabrication of securities, the exercise of forged securities, the fabrication of private documents, and the uttering of falsified Private Document is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds of appeal are dismissed. It is so decided as per

Justices Lee Sang-hoon (Presiding Justice)