The case holding that there was an error in the misapprehension of the judgment of lack of evidence and the incomplete hearing, which found the testimony of a weak witness

The case holding that there was an error in the misapprehension of the judgment of lack of evidence and the incomplete hearing, which found the testimony of a weak witness

Article 308 of the Criminal Procedure Act

Defendant

Defendant

Attorney Choi Han-su

Seoul Criminal Court Decision 89No3165,3821 (Consolidated) decided September 30, 1989

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

The grounds of appeal by the defendant and his defense counsel are also examined.

1. Forgery of private documents, and the point of uttering thereof;

(1) According to the reasoning of the lower judgment, the lower court: (a) had Nonindicted Gyeong-hee prepare one copy of the instant sales contract, which was written in KRW 190,00,00, using the pre-printed land sales contract paper in order to exercise the Defendant’s right by using the testimony of the first instance court witness and the witness’s testimony and the witness’s statement investigation as to the safeness of the public prosecutor; and (b) forged one copy of the land sales contract, which is a private document regarding the right and duty of the victim’s name, by affixing the seal of the victim’s name in advance, and affixed one copy of the land sales contract, which is a private document for the right and duty of the victim’s name, at the same time and place; and (c) recognized the fact that the Defendant used the above forged land sales contract to the victim who was unaware of the fact as if he had actually formed one copy of the above forged land sales contract at the same time and place.

(2) However, the Defendant asserted that the above forgery of the crime of forgery was denied, and that the above sales contract was made with the consent of the above person who is the title holder of the preparation, and stated as follows. In other words, the Defendant: (a) on January 3, 1988, the Defendant: (b) sold the instant real estate to the Nonindicted Kim Yong-woo on the price of KRW 47 million; and (c) upon the receipt of the down payment and the intermediate payment, the Defendant succeeded to the status of the purchaser; (b) sold the remainder to the said Nonindicted Kim Yong-woo; and (c) sold the said real estate to him; and (d) sold the payment to him; and (c) incurred losses; and (d) to obtain more profits from the sale by resale, the Defendant drafted the sales contract of this case, with the consent of the above person’s agent, stating the sales amount of KRW 19

According to the records, the defendant's assertion that he delegated the above Ansan to the above person and sold the real estate of this case to the defendant as sale price of KRW 190,00,000,000 to the above person in accordance with the terms of the sales contract in this case is recognized as having submitted to the investigation agency a certificate of real estate sale under the above inside representative's name with a copy of the above sales contract and a certificate of personal seal impression of the above inside representative's identity (refer to the investigation record 42 to 45). Thus, barring special circumstances, the defendant's assertion that the above sales contract was prepared with the consent of the above inside representative's

However, the above, since the public prosecutor's office sold the real estate of this case to the defendant, it is true that the above certificate was prepared. However, it was stated that the sales contract of KRW 190,000,000 attached purchase price was not prepared, and that the certificate was issued at the time of preparation of the sales contract of KRW 47,00,000 for the initial purchase price and the certificate of personal seal impression was not issued for the confirmation of the above sales facts, and that the above certificate was issued at the court of first instance. However, at the time of the testimony of the public prosecutor's office, it was stated to the purport that the above certificate was issued at the time of preparation of the above certificate of personal seal impression by the defendant's defense counsel, and that the above certificate of the sale and the certificate of personal seal impression was not prepared and issued by the defendant upon the request of the above public prosecutor's defense counsel at the court of first instance.

In light of the above evidence relations, the part of the above witness's statement that the sales contract of KRW 190,000 for the above sales price was forged by the defendant at will without the consent of the above inside and outside or his/her agent, cannot be deemed as weak for credibility.

In addition, according to the testimony of the above Ansan, it is recognized that the same person has used the same person's seal with the delegation of the above inside, and the same person has been used as a final and conclusive certificateer of judgment (see, e.g., Supreme Court records 36 of trial records). In comparison with the affixed seal of the inside and the affixed seal of the present sales contract of this case that the defendant forged with the affixed seal of the inside and the affixed seal of the present sales contract of this case, the same person shall be seen. If the above two seals are the same person, it is difficult to conclude that the defendant has forged the above sales contract of this case until it is viewed that the seal of the inside and the affixed seal of the representative of the inside and the present representative of

Ultimately, even though the court below should have examined the above contents of evidence, it has committed an unlawful act that affected the conclusion of the judgment due to the error in determining the value of evidence and the incomplete hearing and the error of finding the facts constituting the crime of forging a private document by adopting the above inside and outside statement without the name. Therefore, it is reasonable to discuss this point.

(3) Fraud and false accusation

Examining the evidence admitted by the court below in light of the records, each criminal facts in the judgment of the defendant are sufficiently recognized and there is no error of law that affected the conclusion of the judgment due to a violation of the rules of evidence, incomplete deliberation, or error of law application.

2. Ultimately, among the judgment of the court below, the forgery of private documents, and the uttering of such private documents cannot be maintained remarkably due to their illegality, and the court below rendered a single sentence by treating the crime of fabrication of private documents, the crime of uttering, and the crime of fraud and false accusation as concurrent crimes. Therefore, the judgment below is reversed and remanded in entirety. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)