Defendant

Defendant

A citizen who is in charge of the operation (prosecution) and Kim Han-han (Public trial)

Attorney Park Jong-ok (Korean National Assembly)

Daejeon District Court Decision 2017Ma459 decided May 4, 2018

The judgment of the court below is reversed.

Defendant shall be punished by a fine of KRW 10,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

Of the facts charged in the instant case, innocence is not guilty on the alteration of official documents and the uttering of altered official documents.

The summary of the acquittal part in this judgment shall be publicly notified.

1. Facts charged;

【Criminal Power】

On May 20, 2015, the Defendant was sentenced to eight months of imprisonment for a violation of the Public Official Election Act at the Daejeon High Court on May 20, 2015, and completed the execution of sentence on August 16, 2015.

【Criminal Facts】

The Defendant displayed a certified copy of the register that altered as if there was no collateral on the land and building (hereinafter “instant real estate”) owned by the Defendant’s mother Nonindicted 1, Chungcheongnam-gu, Chungcheongnam-gu, and the building (hereinafter “the instant real estate”) with the victim Nonindicted 3, who read that “in the event of borrowing money from the lender, it is impossible to repay the borrowed money, it would create a collateral security on the instant real estate” and that the Defendant would acquire the money borrowed from the victim.

(a) Alteration of an official document;

The Defendant at the end of August 2015, and around January 2013, the part of the date and time of inspection of the entire registration of the instant real estate, which was not entered into a provisional registration for ownership transfer security (receiving on February 6, 2013) and a registration for the establishment of a neighboring mortgage (receiving on January 23, 2013), which was printed out through the Internet, was deleted and copied as a titch.

For the purpose of uttering, the Defendant altered one copy of the entire registration certificate concerning the instant real estate issued by the Chungcheong Registry Office of the Daejeon District Court.

(b) Exercising altered official documents;

On August 10, 2016, the Defendant, at the Defendant’s container office located in Chungcheongnam-gu, Chungcheongnam-do ( Address 2 omitted), displayed a false statement on the entire registered matters concerning the instant real estate held by alteration as stated in paragraph (a) to the victim who was aware of the alteration, stating that “If he/she is unable to repay the money, he/she would have to create a collateral on the instant real estate,” and subsequently, presented it as if he/she did not create a collateral on the instant real estate at the time.

(c) Fraud;

On August 10, 2016, the Defendant, at the Defendant’s container office located in Chungcheongnam-gu, Chungcheongnam-gu ( Address 2 omitted), sent a copy of the entire registration certificate concerning the instant real estate held by alteration as stated in paragraph (a) to the victim who is aware of the alteration. As such, the Defendant stated that “I would create a right to collateral security on the instant real estate if I would lend money to the Defendant with business funds,” and that “I would create a right to collateral security on the instant real estate at the time of the alteration.”

However, the facts are only limited to the obligation that the Defendant had not paid the construction cost or personnel expenses that the Defendant had existed at the time, but did not own the property of the Defendant, and the real estate in this case at the time of the above temporary closure, the ownership transfer security registration (the receipt on February 6, 2013) in which the person holding the provisional registration and the person holding the right to collateral security (the receipt on February 6, 2013) and the registration of the establishment of the neighboring mortgage (the

The Defendant, who believed to have value of the instant real estate as collateral, was transferred to each of the victims who believed to have been in value of the instant real estate as collateral, KRW 30 million under the pretext of the loan, and KRW 10 million around August 26, 2016, respectively.

The defendant was granted property by deceiving the victim.

2. The judgment of the court below

The lower court found the Defendant guilty of all the charges and sentenced the Defendant to imprisonment with prison labor for a year and six months.

3. Summary of grounds for appeal;

A. Error of mistake

1) In relation to the facts charged for the alteration of an official document and the uttering of an altered official document, the crime is not established since it cannot be deemed that the act of the Defendant’s deletion of the date and time of inspection causes a danger to the public trust.

2) In relation to the facts charged of fraud, there was a real value higher than the borrowed money in the instant real estate, and the Defendant continued the construction, and fully repaid the borrowed money with the construction cost. Since both the intent of repayment and the ability are satisfied, the crime is not established due to the absence of the intention of defraudation.

B. Unreasonable sentencing

The punishment of the court below (one year and six months of imprisonment) is too unreasonable.

4. Judgment on the assertion of mistake of facts

A. As to the alteration of official documents and the uttering of altered official documents

1) The offense of altering official documents is established when a person without authority writes new probative value by altering the content of documents already prepared by a public office or a public official to the extent that the identity would not be undermined (see, e.g., Supreme Court Decisions 2002Do7339, Dec. 26, 2003; 2010Do14587, Sept. 29, 201).

2) According to evidence, the following facts can be acknowledged.

① On January 14, 2013, the registration of transfer of ownership was completed on the instant real estate under the name of the Defendant’s mother Nonindicted Party 1. The Defendant borrowed money from Nonindicted Party 2 with respect to the instant real estate on January 23, 2013 and registered the registration of transfer of ownership on February 6, 2013.

② On January 2013, prior to the registration of the establishment of a neighboring mortgage and the provisional registration of transfer of ownership, the Defendant printed out a full certificate of the registered matters concerning the instant real estate inspected on the Internet (hereinafter “wholly registered matters prior to the amendment,” and the Defendant printed out to verify whether the inheritance registration was proper. The Defendant borrowed money from the branch around August 2015, in order to present it as security, deleted and copied the perusal date at the bottom of the entire certificate of the previous registered matters prior to the amendment.

③ On August 10, 2016, the Defendant borrowed money from Nonindicted 3, and issued a full certificate of registered matters (hereinafter referred to as “full certificate of registered matters after modification”).

3) Comprehensively taking account of the following circumstances recognized by the facts and evidence, it cannot be readily concluded that the time and time part of the entire certificate prior to the change was forged to the extent that there was a risk of undermining public trust and good faith due to the act of removing and copying the entire certificate.

(1) The real estate registration system is a system in which State agencies record and publicly announce matters concerning the current state and rights of real estate in order to promote the safety and swiftness of transaction. The registration record has the title section in which matters concerning the indication of real estate are recorded, Section A in which matters concerning ownership are recorded, Section B in which matters concerning ownership, and Section B in which matters concerning rights other than ownership are recorded, and the order of priority in which rights are registered (Articles

(2) A certificate of registered matters may be perused or issued with documents evidencing the whole or part of the matters entered in the registration record of real estate (Article 19 of the Registration of Real Estate Act). When a certificate of registered matters is issued, the date of issuance shall be recorded, and accordingly the date of issuance shall be entered at the bottom of the certificate of registered matters (Article 30 of the Rules on the Registration of Real Estate, Article 220 pages). Even when a certificate of registered matters is perused, the date of perusal at the bottom of

(3) In light of the purpose and function of the real estate registration system, details entered in a certificate of registered matters, etc., the certificate of registered matters shall have probative value on matters relating to real estate phenomena and rights at a

(4) The Defendant printed out the registration record concerning the instant real estate that was perused through the Internet, and the date and time of perusal at the lower end is indicated. The Defendant deleted and copied the date and time indicated on the lower end of the entire registered matters prior to the change, and made a full certificate of registered matters after the change.

(5) A certificate of the whole registered matter after the modification contains the same content as the certificate of the whole registered matter before the modification, except for the date and time of inspection at the bottom, and there is no description as to the date and time of inspection. A certificate of the whole registered matter after the modification is a document proving that there is a registered record (title, section A, and section B) with the same content as the date and time of inspection at any time when the date and time of inspection cannot be known. It is difficult to deem that a certificate of the whole registered matter after the modification

6. The Defendant presented a certificate of registered matters as a certificate indicating the right at the time when the entire certificate was issued after the modification, and the victim believed such act. However, aside from the fact that such act becomes a means of fraud, it is difficult to deem that there was a new probative value that there was a registration record as at the time of delivery of the entire certificate, after the change was made by the Defendant, and that there was a new probative value that there was a registration record as at the time of delivery of the entire certificate, and that there was a risk of undermining the public credit.

4) The evidence submitted by the prosecutor alone is insufficient to recognize that the Defendant’s act of making and delivering a full certificate of registered matters after the change constitutes the crime of altering official documents and the crime of uttering of altered official documents. The Defendant’s appeal on this part is with reason.

B. Regarding fraud

1) A crime of fraud is established by deceiving the other party and receiving property through the defective intent of the other party. If the other party by deceiving him/her from a false fact, etc. is delivered property, a crime of fraud is established. The intent of repayment and ability to repay, whether sufficient collateral was provided, or there was no damage to the entire property of the victim, and even if the loan was repaid ex post facto, it does not affect the establishment of a crime of fraud (see Supreme Court Decision 2002Do7262, Apr. 29, 2005, etc.).

2) According to evidence, the following facts can be acknowledged.

① On August 10, 2016, the Defendant requested the victim to lend KRW 30 million to the victim. On August 10, 2016, the Defendant: (a) drafted a loan certificate stating that “30 million won shall be repaid to the victim by September 10, 2016; (b) the victim shall create a collateral for the instant real estate; and (c) if the payment is not possible, the victim shall make the collateral for the instant real estate; and (d) shall delegate the progress payment and balance related to tin construction among the construction works in the ○○ Military Public Health Center, Eup/Myeon office. The Defendant, along with the loan certificate, issued to the victim a full certificate of registered matters and a written contract for construction related to the ○○ Military Public Health Center, Eup/Myeon office. The victim transferred KRW 28 million to the account in the name of the Defendant on August 11, 2016.

② On August 26, 2016, the Defendant requested the victim to lend additional KRW 10 million to the victim. On August 26, 2016, the Defendant drafted a loan certificate stating that “10 million won shall be repaid to the victim by September 1, 2016. In the event of nonperformance, the Defendant shall transfer the instant real estate to the victim.”

③ On September 6, 2016, the Defendant remitted KRW 10 million to the victim upon repayment of the borrowed amount on August 26, 2016. The Defendant, on September 12, 2016, remitted the amount of KRW 30 million to the victim on August 11, 2016. The victim, on the same day, remitted the amount of KRW 30 million again to the Defendant.

3) Comprehensively taking account of the following circumstances that can be recognized based on the above facts and evidence, the Defendant could be deemed to have obtained the Defendant’s deception of the victim and acquired the Defendant’s deception of KRW 28 million on August 11, 2016 (the judgment of not guilty ex officio) and KRW 2 million on August 26, 2016. The Defendant’s appeal on this part is without merit.

① The Defendant, while borrowing money, made a loan certificate with the content of providing the instant real estate as collateral. The Defendant stated to the effect that “The victim had previously been a small amount of money, but at this time, demanded that the amount be a security, and issued a full certificate of registered matters after changing the date and time of inspection that was made available for the payment of money (Form 84 of the Investigation Record).” The victim stated to the effect that “I would have known that no security was established, and would have not lent money if I would have known that the collateral was not established.” According to the loan certificate and the content of the statement, the Defendant would be recognized to have lent money to the effect that “I would have not borrowed money if I would have known that there was no security was established.” According to the loan certificate and the statement, the Defendant, upon the victim’s request for a security, had the victim deleted and copied the date and time of inspection as if there was no security established any security established on the instant real estate, and had the victim lent money to the victim.

② Since the Defendant prepared a loan certificate that provides the instant real estate as security when issuing a certificate of all the registered matters after the date and time of inspection of the Defendant who was requested to provide the instant real estate after the change, the criminal intent of deceiving money may be sufficiently recognized as if the instant real estate was not set up.

③ Fraud was established by: (a) the Defendant, following the alteration of the crime of deception, issued a full certificate of registered matters after the alteration; and (b) the victim took a disposal of lending money. It is recognized that the Defendant carried out construction works related to ○○ Military Public Health Center and Eup office at the time, and fully repaid the borrowed money to the victim; and (c) even if the secured value of the instant real estate remains as alleged by the Defendant, insofar as the Defendant borrowed money from the victim by unlawful means,

5. Conclusion

The appeal by the defendant against the alteration of an official document and the exercise of an altered official document is reasonable, and the part and the crime of fraud, which the court below found guilty, are imposed on concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, the judgment of the court below is reversed in its entirety. Without examining the defendant's assertion of unfair sentencing, the judgment of the court below is reversed in accordance with Article 364 (6)

【Grounds for the Judgment of the Supreme Court】

Punishment of the crime

The Defendant displayed a certified copy of the register that altered as if there was no security establishment on the instant real estate owned by the Defendant’s mother Nonindicted 1, to the victim Nonindicted 3, with the intention of “to establish a collateral security on the instant real estate if it is impossible to repay the borrowed money at the time of borrowing the money,” and to acquire the borrowed money from the victim.

On August 2015, the Defendant deleted and copied the part of the date and time of inspection of the entire registration of the instant real estate, which was not entered into a provisional registration for ownership transfer security (receiving on February 6, 2013) and a registration for the establishment of a neighboring mortgage (receiving on January 23, 2013), which was output through the Internet around January 2013.

On August 10, 2016, the Defendant, at the Defendant’s container office located in Chungcheongnam-gu, Chungcheongnam-do ( Address 2 omitted), displayed one copy of the entire registration certificate concerning the instant real estate held by the alteration as above, and said, the Defendant stated that “If he/she lends money to a business fund, he/she would create a collateral on the instant real estate if he/she fails to pay money,” and said that there was no collateral on the instant real estate at the time.

However, the facts are only limited to the obligation that the Defendant had not paid the construction cost or personnel expenses that the Defendant had existed at the time, but did not own the property of the Defendant, and the real estate in this case at the time of the above temporary closure, the ownership transfer security registration (the receipt on February 6, 2013) in which the person holding the provisional registration and the person holding the right to collateral security (the receipt on February 6, 2013) and the registration of the establishment of the neighboring mortgage (the

The Defendant received money, respectively, from each of the victims who believed to have value of the instant real estate as collateral, as the borrowed money, KRW 28 million on August 11, 2016, and KRW 10 million on August 26, 2016, respectively.

The defendant was granted property by deceiving the victim.

Summary of Evidence

Pursuant to Article 369 of the Criminal Procedure Act, prior records of the judgment of the court below regarding "1. Criminal records: Criminal history records, investigation reports (verification of suspect's repeated records)" are the same as those of the relevant part, except for deletion of such report.

Application of Statutes

1. Relevant laws and the choice of punishment for the crime;

Article 347 (1) (General Provisions) of the Criminal Act; Selection of a fine

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

Reasons for sentencing

The Defendant, prior to the establishment of the instant real estate security, obtained a total of 38 million won by deceiving the victim by eliminating the date and time of inspection of the entire certificate of registered matters printed out and issuing a copy of the entire certificate of registered matters. The method and nature of the crime are not good. The Defendant committed the instant crime even though having multiple criminal records, including the criminal records of the same kind, again committed the instant crime.

However, at the time of borrowing money from the victim, the Defendant appears to have had the intent and capacity to repay money, and actually repaid money in one month from the time of borrowing money. The Defendant repaid a considerable portion of money borrowed on September 12, 2016, and only agreed with the victim and the victim does not want to punish the Defendant.

Such circumstances and the defendant's age, character and conduct, family relationship, motive, means and consequence of the crime, and all the sentencing conditions shown in pleadings after the crime is committed shall be determined as ordered.

The acquittal portion

1. Facts constituting an offense of altering an official document and uttering an altered official document;

The facts charged regarding the alteration of official documents and the uttering of altered official documents are as stated in the above 1. A. B. as stated in the above 4. A. As such, this part of the facts charged falls under the time when there is no proof of facts constituting a crime, and thus, the judgment of innocence is rendered in accordance with the latter part of Article 325 of the Criminal Procedure Act, and the summary of the part of innocence in this judgment is publicly announced in accordance with Article 58(2) of

2. Part of the charges of fraud of KRW 30 million delivered on August 11, 2016 (two million won)

Of the facts charged in fraud, the facts charged about KRW 30 million, which was delivered on August 11, 2016, is that the Defendant deceivings the victim as described in the above 1.C. and received KRW 30 million from August 11, 2016.

According to evidence, the victim is only recognized to have remitted KRW 28 million to the Defendant’s account on August 11, 2016. The victim asserts that on August 11, 2016, he/she provided the Defendant with an employee of the victim and provided the Defendant with a cash of KRW 2 million, and the Defendant did not receive cash because he/she provided the Defendant with a prior interest rate of KRW 2 million. The victim stated that he/she did not receive cash because he/she provided the Defendant with a cash of KRW 2 million at an investigative agency (the investigative record 265 pages), and there is no other evidence to acknowledge that the Defendant received cash of KRW 2 million on August 11, 2016. The evidence submitted by the prosecutor alone is insufficient to recognize that the Defendant received KRW 2 million in addition to KRW 28 million, which was remitted to the victim on August 11, 2016.

Of the facts charged of fraud, the part that the defendant received a transfer of KRW 28 million to the victim on August 11, 2016, as well as the part that the defendant received more than KRW 28 million, in addition to the amount that was remitted to the victim on August 11, 2016, when there is no proof of the facts of the crime, and thus should be acquitted in accordance with the latter part of Article 325 of the Criminal Procedure Act, but

Judges Kim Yong-sik (Presiding Judge)

1) The indictment states, around January 201, that “Around February 6, 2013, the part of the date of issuance of the copy of the register on the instant real estate, in which the ownership transfer collateral registration (receiving on February 6, 2013) and the ownership transfer registration (receiving on January 23, 2013) issued by the Cheongyang Registry was not made, was deleted and copied in a tamp. According to the evidence, the Defendant, rather than the “date of issuance” of the copy of the register issued by the Cheongyangyang Registry, deleted and copied “the entire certificate printed out through the Internet” as “the date of issuance,” and “the entire certificate printed out through the Internet.” Since the Defendant did not disadvantage the Defendant’s exercise of his/her right to defense, part of the facts charged is corrected without the amendment procedures.

2) The indictment states “Around August 10, 2016.” According to the evidence, the victim has been aware that he/she remitted the amount of KRW 28 million to the Defendant on August 11, 2016, and the victim stated that he/she gave KRW 2 million to the Defendant on the same day. The victim did not disadvantage the Defendant’s exercise of his/her right to defense. As such, the facts charged are modified as above without the amendment process.