Defendant

Both parties

Maximum Jae-in, best police officer, Kim-con (prosecution), Namin (Public trial)

Attorney Lee Gyeong-woo

Suwon District Court Decision 2018Dadan870, 2018 Godan2288 (Joint), 2018 Godan2521 (Consolidated) Decided January 3, 2019

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for a term of four years, by a fine of twenty million won,00,000 won (two hundred billion won).

When the defendant fails to pay the above fine, the defendant shall be confined in the old house for the period converted by the amount of KRW 400,000 for one day.

In order to order the provisional payment of an amount equivalent to the above fine.

1. Summary of grounds for appeal;

(a) A prosecutor;

(1) misunderstanding of facts

Of the facts charged in this case, the part which the court below acquitted the victim non-indicted 2 on the charge of fraud (the part which the court below acquitted the victim non-indicted 2 of KRW 145,625,00) may be found guilty according to the statement made by the police of the victim non-indicted 2, but the court below acquitted the victim non-indicted 2 of this part of the facts charged, which affected the conclusion of the judgment.

(2) Legal principles

Of the facts charged in this case, the court below judged that the above facts charged do not constitute forgery or alteration of a check under Article 5 of the Illegal Check Control Act, but constitutes forgery or alteration of securities under Articles 214(2) and (1) and 217 of the Criminal Act, and acquitted the Defendant of this part of the facts charged, and found the Defendant guilty of the crime of forging securities and exercising the same rights. The court below erred by misapprehending the legal principles, which affected the conclusion of the judgment.

(3) Unreasonable sentencing

As seen earlier, the lower court’s punishment against the Defendant is too unreasonable considering the following: (a) additional fraud is recognized for the Defendant; (b) the victims’ damage was not recovered even though the amount of fraud was a large amount; and (c) the victims escaped abroad for a long time of damage.

B. Defendant

The punishment of the court below (five years of imprisonment, fine 400,000,000) is too unreasonable.

2. Determination

A. Determination of the Prosecutor’s assertion

(1) As to the fraud described in Nos. 1, 3, 5, and 7 of the attached Table 1, 3, 5, and 7 in the judgment of the court below against the victim non-indicted 2)

The court below determined that the victim non-indicted 2's statement alone by deceiving the victim non-indicted 2, as stated in this part of the facts charged, and it is difficult for the prosecutor to capture the part exceeding 47 million won by deceiving the victim non-indicted 2, as stated in this part of the facts charged. Since it is difficult for the defendant to memory his work for a long time, the prosecutor asserts that the victim non-indicted 2's statement most adjacent to the time of the crime of this case was more reliable than the statement after his return to Korea. However, in full view of the statements in the police, the police, the prosecution, and the court of the court below, the victim non-indicted 2's statement in the police is more reliable. However, if the victim non-indicted 2's statement in the police is judged again by taking account of the fact that the victim non-indicted 2's statement was reported by the police and made rhythizing the contents of the statement, and the victim non-indicted 2 changed his statement according to his own judgment, and there is no other reason to reverse the statement for the defendant's.

Therefore, this part of the prosecutor's assertion of mistake is rejected.

(2) Legal principles

(A) Summary of the facts charged

On August 27, 2002, the Defendant: (a) entered the date and time indicated in Section 1-B of Section 1 of “2018 Highest 870, and at the place indicated in Section 1-B of “The Bank” in the column of endorser of Chapter 1 [The Bank, △△△△ Branch (Inspection Number omitted)], which was received for checks from Nonindicted Party 1 at his own expense, forged the check, stating “Iri-si ( Address 2 omitted) and Nonindicted Party 1 on May 16, 2002,” and presented it to Nonindicted Company 3 employees.

(B) Relevant legal provisions (amended by Act No. 10185, Mar. 24, 2010)

Article 1 (Purpose)

The purpose of this Act is to ensure the safety of the people's economic life and the function of checks, which are securities, by controlling and punishing the issuance of illegal checks, etc.

Article 2 (Criminal Responsibility of Issuer of Illegal Check)

(1) A person who issues or prepares illegal checks falling under any of the following subparagraphs shall be punished by imprisonment for not more than five years or by a fine not exceeding ten times the amount of such checks:

1. A check issued in the name of a processing person;

3. A check registered with a financial institution and issued with any other signature or seal.

(2) Paragraph (1) shall also apply where a person who issues or prepares a check fails to pay it on the date for presentation due to shortage of deposits, suspension of transactions, or cancellation or termination of the check contract after issuing the check.

(4) A person who issues or prepares a check under paragraphs (2) and (3) shall not be prosecuted against the explicit will of the holder of the check, even if the check has not been recovered or withdrawn by the person who issued or prepared the check.

Article 5 (Criminal Responsibility of Forgery or Counterfeiter)

A person who forges or alters a check shall be punished by imprisonment for a definite term of at least one year and by a fine not exceeding ten times the amount of the check.

(C) The judgment of the court below

In light of the purport of Article 1 of the Illegal Check Control Act, the lower court determined that the act of issuing a check includes only the act of issuing a check in forgery of a check under Article 5 of the Illegal Check Control Act.

(D) The judgment of this Court

Article 214(1) of the Criminal Act on the Crimes of Forgery and Alteration of Securities provides that "any person who forges or alters public bonds, etc. of the Republic of Korea or foreign countries for the purpose of uttering shall be punished by imprisonment with prison labor for not more than ten years," while Article 5 of the Illegal Check Control Act on the Crimes of Forgery and Alteration of Check provides that "any person who forges or alters a check shall be punished by imprisonment with prison labor for not less than one year and by a fine not exceeding ten times the amount of the check." Article 5 of the Illegal Check Control Act provides that "The person who forges or alters a check shall be punished by imprisonment with prison labor for not less than one year and by a fine not exceeding ten times the amount of the check." Article 5 of the Illegal Check Control Act does not require "the purpose of uttering a check among securities, which is an excessive subjective constituent element by relaxing the requirements for the establishment of the crime, taking into account the strong circulation of the check and the importance as a means of transaction," while it should be interpreted that the act of forgery and alteration of other securities shall be punished by adding punishment (Supreme Court Decision 200

Article 5 of the Illegal Check Control Act does not state that only forgery of the act of issuing a check constitutes a separate crime, and simply a person who forges or alters a check shall be punished. In addition, the act of endorseing a check also constitutes an act of protecting authenticity as an important security act in relation to the possibility of payment of a check, and Article 2 (Criminal Responsibility of Issuer of Illegal Check) of the Illegal Check Control Act also provides that the person who issues or prepares an illegal check shall be the person who issues or prepares it as the principal agent, and it shall not be punished only by the issuer. In light of the above, the act of endorsement without authority as stated in the facts charged in the instant case shall be deemed to constitute the above Article of a check as stipulated in Article 5 of the Illegal Check Control Act.

In light of the purport of the Illegal Check Control Act and Article 214(1) of the Criminal Act, the court below held that the forgery of a check referred to in Article 5 of the Illegal Check Control Act and that the issuance of a check refers only to the issuance of a check with the use of another person's name, in consideration of the following: (a) punishment for forging a false description on the rights and obligations of securities in Article 214(2) of the Criminal Act and for forging a false description on the rights and obligations of securities; and (b) prohibition of forging

However, in order to secure the importance of the means of circulation and transaction of checks, the Act on the Control of Illegal Check was enacted to punish more strictly than the fabrication of other securities. Article 5 of the Illegal Check Control Act does not provide for the basic act of securities and the act of securities incidental thereto, and the document is prepared by a person not authorized under the language of the "Forgery", it can be said that the document is forged. Even if Article 214(a) of the Criminal Act as a general juristic person separates the act of issuing securities and the act of issuing securities and the act of conducting securities incidental thereto, even if it is classified by dividing it into Article 214(a) of the Criminal Act, it cannot be said that the act does not constitute the element of Article 5 of the Illegal Check Control Act, even if

Therefore, even if the facts charged of this case fall under Article 5 of the Illegal Check Control Act, the court below found the defendant not guilty on the ground thereof, which erred by misapprehending the legal principles, which affected the conclusion of the judgment, and the prosecutor's allegation of this part of the legal principles

3. Conclusion

Therefore, the prosecutor's argument of the misapprehension of the legal principles is with merit. Thus, the decision of the court below is reversed under Article 364 (6) of the Criminal Procedure Act and the prosecutor's appeal of unfair sentencing is reversed, and it is again decided as

The summary of the facts constituting the crime recognized by this court and the summary of the evidence is as follows, except for the correction or addition of the facts constituting the crime of the original judgment, and therefore, it is identical to the corresponding column of the original judgment. Thus, it is cited in accordance with Article 369 of the Criminal Procedure

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1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 2(2) and (1) of the Control of Illegal Check Act (amended by Act No. 10185, Mar. 24, 2010); Article 2(2) and (1) of the same Act (amended by Act No. 10185, Mar. 24, 2010); Article 5 of the same Act (amended by Act No. 1010, Mar. 24, 201); Article 214(1) of the Criminal Act (amended by Act No. 214(1) of the same Act; Article 214(2) and (1) of the Criminal Act; Article 217, and Article 214(1) of the Criminal Act (amended by Act No. 10185, Mar. 24, 2010); Article 347(1) of the Criminal Act (amended by Act No.

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2 and 3, and Article 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the former Criminal Act (Amended by Act No. 12575, May 14, 2014)

1. Order of provisional payment;

Article 6 of the Control of Illegal Check Act, Article 334 (1) of the Criminal Procedure Act

The lower court, under the circumstances unfavorable to the Defendant, took into account: (a) there are no circumstances to deem that the method of committing each of the instant crimes is inferior, the amount of fraud is a large amount, and (b) there is no other circumstance to deem that the victims did not agree with each of the instant crimes; (c) there is no good condition after committing each of the instant crimes, including (i) the fact that the Defendant is aware of each of the instant crimes, (ii) the fact that the Defendant is self-denunciation, (iii) the fact that there is no record of criminal punishment exceeding the fine, (iv) the fact that there is no record of criminal punishment beyond the fine, and (iii) the fact that there is no good condition of the Defendant’s health.

The court requested the sentencing investigator and the probation office to investigate whether the defendant has concealed the amount acquired by deception after the crime of this case in his name or his family, whether it is possible to pay damages to the victims in the future, whether the defendant's life and income during the escape from overseas, and the health condition of the defendant.

The above investigation results and various sentencing factors indicated in the arguments of this case, including the fact that the defendant was born in 1946 and older than 74 years old, that there are no more than five persons prior to the following, that there is no good health condition, that the defendant escaped to the United States with only air expenses, and that there is no circumstance to deem that the defendant was receiving board and lodging without remuneration, and concealed the amount of fraud, etc., shall be determined as per Disposition, by comprehensively taking into account the following factors together with the reasons for sentencing of the court below.

Judges Lee Jong-sung (Presiding Judge)