[1] Whether the act of delivering forged securities among accomplices in the crime of forging securities constitutes the crime of uttering of forged securities (negative)

[2] In a case where the Defendant and Party A conspiredd to pretend as if the Defendant borrowed money from the Defendant, and the Defendant delivered the forged cashier Party A and Party A via B a falsified cashier’s checks to Party B at the same place where he was aware of the forged cashier’s checks, and in this case Party A did not take the forged cashier’s checks from or show Byung, the case holding that the judgment below convicting the Defendant of the charge of exercising the above forged negotiable securities was erroneous in misapprehending legal principles

[1] The punishment purpose of the crime of uttering of forged securities is to protect the credibility of documents simply as long as it is the crime of uttering of forged or private documents, and in case where the delivery of forged or falsified securities is recognized and delivered to the person who knows that it is a genuine or true securities, the act of delivery itself is likely to harm the distribution order of securities, and thus, the crime of uttering of forged securities is established. However, if the delivery of forged or falsified securities is related to the accomplice who has conspired to forge the securities or has conspired to divide profits by using forged or falsified securities, the delivery of forged or falsified securities is merely an act prior to the execution of the crime to realize the crime by exercising it to the person other than the above, and it cannot be deemed that the delivery of forged or falsified securities has yet to be exercised.

[2] In a case where the Defendant and Party A conspiredd to pretend to borrow KRW 15 million from the Defendant, and the Defendant: (a) through an envelope containing 100,000 won cashier’s checks other than 14,00 won cashier’s checks, the Defendant sent the envelope containing 10,000 won check to Party B to Party B; and (b) Party A prepared a loan certificate containing 10,000 won check as a guarantor at the same place; (c) Party A did not appear to have taken 10,000 won check from the envelope to Party B, but did not show 1,00,000 won cashier’s checks to Party B, the case held that the lower court erred by misapprehending the legal principles or by misapprehending the legal principles, and thus, it cannot be deemed that Party A’s use of the above cashier’s checks, even though Party A’s use of the falsified cashier’s checks.

[1] Articles 214(1) and 217 of the Criminal Act / [2] Articles 214(1) and 217 of the Criminal Act

[1] Supreme Court Decision 81Do2492 delivered on June 14, 1983 (Gong1983, 1105) Supreme Court Decision 2002Do3340 Delivered on January 10, 2003 (Gong2003Sang, 666) Supreme Court Decision 2003Do2372 Delivered on June 27, 2003, Supreme Court Decision 2006Do7120 Delivered on January 11, 2007

Defendant

Defendant

Attorney Cho Han-ju

Seoul Central District Court Decision 2010No1660 Decided August 25, 2010

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

We examine the grounds of appeal.

1. As to the grounds of appeal on the violation of the Narcotics Control Act and the Illegal Check Control Act

Since it is clear that the defendant appealed from the judgment of the court of first instance which found the defendant guilty on each of the above facts constituting an offense only on the ground of unfair sentencing, the defendant may not appeal against the judgment of the court of final appeal that there was an error of misconception of facts or misunderstanding of legal principles in the judgment of the court of final appeal.

2. As to the ground of appeal on the crime of uttering of forged securities

In full view of the admitted evidence, the court below found the defendant guilty of holding that the defendant sent 1,00,000 won cashier's checks to non-indicted 1, which were forged by copying it from ○○○○○○○○○○○○, located in the Newdong, Yangcheon-gu Seoul, Seoul, to Non-indicted 1, and that Non-indicted 2 exercised the above checks by delivering it to non-indicted 2 as if he was actually issued in good faith before the court below as if he was actually issued.

However, it is difficult to accept such judgment of the court below for the following reasons.

Unlike the crime of forging/private document uttering, the purpose of punishment for the crime of uttering of forged/securities is to protect the credibility of documents simply as long as it is intended to protect the order of the distribution of securities, in a case where the delivery was made and delivered to the person who knows that the delivery was a genuine or true securities, and even if the delivery was made to the person who knows that the delivery was made, the act of delivery itself is likely to harm the order of the distribution of securities, and thus, there is sufficient reason and necessity for punishment. Therefore, the crime of uttering of forged/securities is established. However, if the delivery of forged/securities and the delivery are related to the accomplice who conspired to forge the securities or conspired to divide profits by using the forged/negotiable securities to other persons, the delivery of forged/negotiable securities is merely an act prior to the process of realizing the crime by exercising it to others, and it cannot be deemed that the delivery of forged/negotiable securities has yet been made (see Supreme Court Decision 2006Do7120, Jan. 11, 207, etc.).

According to the facts admitted by the court below and the record, the defendant and the non-indicted 2, who pretended to borrow KRW 15 million from the defendant and ordered the non-indicted 2, who is the co-defendant 1, to guarantee the obligation for the loan, and the non-indicted 2, who is the one of the above co-defendant 2, conspired to threaten the non-indicted 2, the guarantor, to repay the obligation for the deposit. For this purpose, on November 6, 2009, the defendant forged 14 of the instant cashier's checks, and on November 1, 2009, the defendant accepted the above non-indicted 10,000 won's checks from the non-indicted 10,000 won's checks from the non-indicted 1, the non-indicted 2, who is the one of the above non-indicted 1, who is the one of the above non-indicted 2, and received the above 10,000 won's checks from the non-indicted 1, who was not the defendant 1, called the above.

Examining these facts in light of the legal principles as seen earlier, it cannot be deemed that the co-defendant 1 or the court below did not recognize the forged cashier's checks by presenting them to Nonindicted 2, and thus, it cannot be deemed that the act of Nonindicted 1 or the co-defendant 1 or the court below giving and taking the falsified cashier's checks in the presence of Nonindicted 2 constitutes an act of using the falsified cashier's checks, and therefore, it cannot be deemed that issuing the instant cashier's checks to Nonindicted 1 or co-defendant 1 or the court below constitutes an act of using them

Nevertheless, the court below found Defendant guilty of this part of the crime of exercising forged securities on different premise. The court below erred by misapprehending the relevant legal principles, which affected the conclusion of the judgment. The ground of appeal on this point is with merit.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the defendant's crime of uttering of forged securities shall be reversed, and since the court below imposed a single punishment by deeming this part of the defendant's remaining criminal facts as concurrent crimes under the former part of Article 37 of the Criminal Act, it shall not be required to determine the remaining grounds for appeal of unfair sentencing, the whole judgment of the court below shall be reversed, and the case shall be remanded to

Justices Lee In-bok (Presiding Justice)