2015No5No5 (a) interference with business affairs, (b) interference with the fabrication of evidence, (c) Forgery of official documents

Preparation of a False Official Document)

1. (a) . (b) . (c) ○ (51 - 1) , free of office

2. (a) . (c) Da-○ (76 - 1) , and employees of the Korea Ship Safety Technology Authority;

3. (a) . (c) GambO (69 - 1) and employees of the Korea Ship Safety Technology Authority;

4. (a) . (c) ○○ (52 - 1) , Company members

5. (a) . (c) GambO (76 - 1) and employees of the Korea Ship Safety Technology Authority;

Defendant New ○○, Park ○, ○, ○○, Gamb○, and Prosecutor (to the Defendants)

(n)

Kim Chang-seop (Lawsuits) and prevention type (Trial)

Attorney Fire-fighting (Defendant 400, 1000, 2000, 200)

Law Firm Jeong, Attorney Kim Jong-mun (private on the part of defendant Shin-young, Counsel for the plaintiff-appellant)

Law Firm Pyeongmun, Attorney Park Byung-hee (the private election for defendant Park Jong-ok)

Incheon District Court Decision 2014Ra4709 Decided December 11, 2014

May 27, 2015

Of the lower judgment, the part of the lower judgment on Defendant 1’s new ○○, Gamb○, and maximum ○○ is reversed.

Defendant New ○, ○○, ○ in fine of KRW 8,00, 000, 000, Defendant Park Jong-○ in fine of KRW 10,00, 000, 000

A person shall be punished.

Defendant New ○○, Park ○, and the largest ○○ does not pay the above fine: KRW 100,000 for each of the following cases:

The above defendants shall be confined to the Nowon-gu for the period of time converted into work.

Defendant New ○, ○○, and ○○○ are ordered to pay an amount of money equivalent to the above fine.

All appeals filed against the defendants Park ○-○ and the prosecutor are dismissed.

1. Summary of the grounds for appeal;

A. Defendant NewO, Park ○, and Maximum ○○ (an unreasonable sentencing)

The sentence of the court below is too unreasonable because it is too unreasonable.

B. Defendant Gab○○

(1) misunderstanding of legal principles

(A) Since the ship inspection work is the defendant's work that causes the ship inspection, the defendant did not interfere with the work of the Korea Ship Safety Technology Authority (hereinafter referred to as "Authority").

(B) The Defendant did not know that the agency should be open when conducting a main agency open inspection.

(2) Unreasonable sentencing

The sentence of the court below is too unreasonable because it is too unreasonable.

C. Public prosecutor (misunderstanding of facts or misunderstanding of legal principles as to the preparation of a false public document, which is the primary charge, and the preparation of a false public document, which is the ancillary charge)

The certificate of ship inspection under the name of the president of the Corporation is an official document, and the Defendants forged the official document in the form of indirect crime, or prepared a false official document.

2. Determination

A. Judgment on the misapprehension of the legal principles of Defendant Park ○ and Prosecutor

(1) Facts of recognition

(A) The status of the parties

1) The Authority is a corporation established to ensure safety related to the navigation of ships and to research, develop, and distribute technology related to ships or ship facilities by being entrusted with or on behalf of the Minister of Oceans and Fisheries (Article 45 of the Ship Safety Act), and conduct regular, interim, and temporary inspection (Article 46 subparagraph 2 of the Ship Safety Act and Article 60 subparagraph 2 through 4 of the Ship Safety Act).

2) The inspector belonging to the Corporation (hereinafter referred to as the “inspector”) is divided into the hull inspection personnel (ship hulls, etc. inspection), the engine inspection personnel (ship’s engine inspection), and the specialized inspector (ship’s metal or electric and electronic fields inspection) according to the work performed by the Corporation (Article 97-2(1) and (4) of the Enforcement Rule of the Ship Safety Act). The Defendants are the assistant inspectors belonging to the Corporation, under the conditions as prescribed by the Ship Safety Act.

(B) the process of issuing the vessel inspection certificate and the rules on the handling of inspectors;

1) A shipowner shall obtain a ship inspection certificate from the Minister of Oceans and Fisheries; (1) when a ship is used for navigation for the first time or when the period of validity of a ship inspection certificate expires; and (2) when a ship inspection certificate falls under certain requirements prescribed by Ordinance of the Ministry of Oceans and Fisheries, a ship inspection certificate must be marked with the result (Article 9 and Article 10 of the Ship Safety Act); and (3) the Corporation shall act on behalf of the Minister of Oceans and Fisheries upon entrustment by the Minister of Oceans and Fisheries.

2) The president of the Corporation shall delegate the vessel inspection services entrusted by the Minister of Oceans and Fisheries to the chief of the branch of the Corporation (hereinafter referred to as the "chief of the branch") and carry out the operations, specific tasks are as follows:

(a) Upon receipt of an application for a vicarious inspection, the head of the branch office shall designate the officer in charge, and the officer in charge shall, if necessary for a field inspection, directly attend the site and pass the inspection, prepare a ship inspection report and submit it to the head of the branch office, and the disqualified vessel shall not operate until it passes the ship inspection.

B) After reviewing the ship inspection report submitted by the head of the branch office, it is indicated that the settlement has been completed in the internal computer system. If the inspector submits a ship inspection certificate in the computer and brings the administrative staff to output the ship inspection certificate, the executive staff affixes his/her official seal in the name of the president of the Korea Ship Safety Technology Corporation. ① In the case of passing the regular inspection, a new ship inspection certificate is issued in the name of the president of the Corporation, stating the phrase “the regular inspection which is not followed by the relevant inspection”, and ② in the case of passing the interim inspection and the temporary inspection, the phrase “the interim inspection” or “temporary inspection” is written.

3) During the vessel inspection, a vessel inspector shall open the entire engine to inspect the condition of the wear and tear of parts, such as a calke, and inspect the condition of the wear and damage of parts, such as a calke, by conducting a vessel inspection. ② When conducting a vessel inspection, he/she shall cut the propeller from the hull and extract the propeller and inspect the condition of the wear and tear (see attached Table 10, 11, and attached Table 8, 9 of the Enforcement Rule of the Vessel Safety Control Act).

(C) Preparation of false ship inspection reports and issuance of ship inspection certificates by the Defendants

The Defendants, while conducting each inspection on the vessels listed in the table "the name of the vessel" as follows, prepared a false ship inspection report to the head of the relevant branch to the effect that the vessels passed such inspection, even though they did not open the whole of the agencies or open the axis from the hulls, and submitted a false ship inspection report to the head of the relevant branch office that they did not pass such inspection. The head of the branch office concerned mispers that the inspection was conducted normally in accordance with the ship inspection report, and accordingly, written the new ship inspection certificate stating the phrase "the regular inspection" on the date stated in the table "the date of issuance of the table", or written the phrase "the interim inspection" or "temporary inspection" on the existing ship inspection certificate issued.

A person shall be appointed.

A person shall be appointed.

B. Determination

(1) Determination of the misapprehension of the legal principle on Defendant Park Jong-○

(A) The Corporation is entrusted by the Minister of Maritime Affairs and Fisheries to re-examine the purpose of the regular, interim, and clinical inspection of ships, issuance of a ship inspection certificate at the time of passing the inspection or the ship inspection certificate, and the inspector shall be deemed to be an assistant to conduct the ship inspection as a member of the Corporation. Therefore, even though Defendant Gamb○ does not have completed the regular open inspection of sexual intercourses, as stated in the facts of the crime in the judgment below, it means that Defendant Gamb○ submitted a false report of the ship inspection to the head of the branch office and submitted a false report of the ship inspection to the head of the branch office to pass the inspection of the vessel inspection certificate of sexual days, thereby hindering the Corporation from conducting the ship inspection by fraudulent means. Thus, the above argument by Defendant Lb○○○ is without merit.

(B) Article 16 of the Criminal Act provides that an act of misunderstanding that one's act does not constitute a crime under the law shall not be punishable only when there are justifiable grounds for misunderstanding. However, it is generally accepted that an act permitted by law does not constitute a crime under one's own special circumstances, and it does not constitute a crime if there are justifiable grounds for misunderstanding (Supreme Court Decision 2005Do3717 Decided March 24, 2006 and 2005Do3717 Decided March 24, 2006). As alleged by the defendant, the circumstance that the defendant did not know of the regulations on the opening inspection of the institution does not constitute a mistake under the law under the above provision, and therefore, the above argument by the defendant Park ○-○ is without merit.

(2) Judgment on the Prosecutor’s assertion of misapprehension of the legal principle

(A) As to the act of aiding and abetting official documents

1) Whether a ship inspection certificate constitutes an official document

A) The public document, which is the object of the crime of altering or forging a public document under Article 225 of the Criminal Act, is a document prepared by a public official or a public office in connection with his/her duties. If the subject of the act is not a public official or a public office, a part of the official duties by contract, etc. may not be a public official or a public office even if it is performed by a public official under the Criminal Act or any other special Act, except in cases where it is deemed that the public official is a public official under the Criminal Act or any other special Act. In particular, it is against the principle of no punishment without the law to expand the elements of

B) Article 82 of the Ship Safety Act provides that "the executives and employees of an agency under the provisions of Article 60 (1), (2), Article 64 (1) or Article 65 (1) shall be deemed public officials in the application of the provisions of Articles 129 through 132 of the Criminal Act so that they can hear the employees of the Corporation only in connection with a bribe-related crime (On the other hand, Article 106 of the Bank of Korea Act provides that "the Monetary Board members, the assistant vice governors of the Bank of Korea shall be deemed public officials in the application of penal provisions under the Criminal Act or other Acts." Article 19 of the Enforcement Decree of the same Act provides that "the chief director, the chief director, and the head of the office, and employees performing some specific duties" shall be deemed public officials as general causes in the application of penal provisions under the Criminal Act or other Acts, and the remaining public officials shall be deemed as public officials of the Corporation's trust in the application of the penal provisions and other relevant public officials' acts."

2) Whether the entry of false information in the ship inspection certificate constitutes "a forgery"

A) If a public official authorized to prepare a document has affixed his/her signature and seal with the intention of making the document with the awareness of the entries in the document and with the intention of preparing the document, even if the signature and seal were omitted with the network of another person, and the entry in the document was not known to the truth, the formation of the document can not be said to have been authentic and copied (Supreme Court Decision 2000Do938 Delivered on March 9, 2001). In addition, in light of the fact that the Criminal Act imposes a penal provision under Article 227 (Preparation, etc. of False Public Document) of the Criminal Act only if the principal official is a public official, and that person assisting in preparing an official document is more narrowly punished than the crime of forging a public document, the person who submitted a false document to the commercial person without knowledge of the fact that the person authorized to approve the document submitted it, and the document cannot be deemed as an indirect crime, apart from the crime of forging an indirect crime of preparing an official document.

B) The head of the branch office of the Corporation shall issue a ship inspection certificate under the name of the president of the Corporation stating that "regular inspection" is clearly aware of the matters stated in the ship inspection certificate and intent to prepare the document, and the ship inspection certificate already issued is " interim inspection" or "temporary inspection". On the other hand, even if the head of the branch office did not know that the ship inspection report prepared by the Defendants was false, it does not constitute an article on official documents and it does not constitute an indirect crime under the article on official documents, and the defendants did not constitute an indirect crime under the article on official documents (in this case, if it is interpreted that the defendants submitted the false examination data to the assistant who was delegated with the comprehensive authority by the president, not the preparing authority, and the direct assistant of the president of the Corporation submitted a false document to the president to prepare the false document, it is difficult to find that the document does not constitute an indirect crime under the article on the forgery of official documents, while the person who submitted the false document does not constitute an indirect crime under the article on the prosecution.

(B) As to the preparation of a false official document

The crime of preparing false official documents and the crime of uttering shall be a person who can be a public official. Thus, in order to punish those who are not a public official in status as the crime of preparing false official documents and the crime of uttering thereof, there must be special provisions related thereto (see Supreme Court Decision 2008Do93, Mar. 26, 2009). The chief director of the Corporation and the defendants are deemed to be a public official only in the application of the crime related to bribe, and therefore, they are deemed to be the subject of the crime of preparing false official documents. Thus, even if the defendant prepared a false report on ship inspection and submitted it to the chief of the branch without knowledge of such circumstances to prepare a false ship inspection certificate, this does not constitute "where a public official prepares a document in connection with his duties."

B. Determination on the assertion of unreasonable sentencing by Defendant NewO, Gab○, Gab○○, Gab○, and Gab○○

(1) As to Defendant NewO, Park ○, and Maximum ○

In full view of all the sentencing conditions shown in the records and arguments of this case and the fact that the defendant's new ○ does not have the same or higher criminal records and amounts, and that the defendant's gambling ○, and the highest ○○ is the first offender, the court below's punishment is too unreasonable.

(2) As to Defendant 1’s gambling ○

Comprehensively taking account of all the sentencing conditions shown in the records and arguments of this case, the lower court’s punishment is too unreasonable.

3. Conclusion

Therefore, the appeal against the defendants by the defendant Park ○-○ and the prosecutor's appeal against the defendants is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act as it is without merit. Since the appeal by the defendant Shin-○, Park ○, and the last ○○, is with merit, the part of the judgment of the court below as to the defendant's new ○, Park ○, and the last ○, among the judgment below pursuant to Article 364 (6) of the Criminal Procedure Act is reversed and it is again decided as follows.

Criminal facts and summary of evidence

The summary of the facts charged by Defendant New ○○, Gamb○, and the largest ○○○○, and the gist of the evidence as well as the facts charged by the lower court, is the same as the corresponding column of the lower judgment, except for the correction as “B on March 23, 2010,” as “C on March 24, 2010,” which is recognized by the lower court, pursuant to Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Relevant Article of the Criminal Act and the selection of punishment for the crime;

Article 314 (1) of each Criminal Code (Selection of Fines)

1. Aggravation for concurrent crimes;

Defendant New ○○, Park ○: the former part of Article 37 of the Criminal Act, Articles 38(1)2 and 50 of the Criminal Act

1. Detention in a workhouse;

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

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judges Jeong-ho

Judges Senior Rotation

Judges South-North;