(영문) 수원지방법원 2009.4.28.선고 2008노5695 판결

① On March 00, 2006, A, who had the money to be received from the Defendant, did not have any reason to prepare the instant promise to confirm that the Defendant was not free of charge, and ② The instant promise includes the content that the document was lost and cannot be returned, but since then A applied for compulsory execution on or after March 00, 2006, the content of the said promise is inconsistent with objective facts, and ③ In light of the fact that the Defendant is the person who has the obligation of the Defendant in the recording book, explanatory note, content certification, etc., the fact that the Defendant forged the instant promise. Accordingly, the lower court acquitted the Defendant of the forgery of the private document and the use of the said questionnaire, which affected the conclusion of the judgment, by misunderstanding the fact that the lower court acquitted the Defendant of the facts.

B. Summary of the grounds for appeal as to the attempted fraud

Even if there was a commencement of the commission of fraud in a lawsuit, if the judgment of △△ became final and conclusive and the procedural acts have not been completed, it shall be deemed unclear and flexible circumstances, and thus, the prosecution for attempted fraud in a lawsuit was not specified as the completion date of the crime. Therefore, the prosecution's indictment constitutes an abuse of the right to prosecute or a case where a public prosecution is instituted due to the violation of the provisions of Acts and subordinate statutes, and thus, it cannot be deemed that the prosecution abused the right to institute a public prosecution or that it violated the provisions of Acts. Accordingly, the judgment of the court below which dismissed the prosecution regarding attempted fraud in the facts charged in this case is erroneous in the misapprehension of legal principles, which affected the conclusion of the judgment.

2. Determination as to the forgery of private documents, and the uttering of private documents

A. Summary of this part of the charges

The defendant is a person who was acting in △△△, and the victim A is a customer of the above △△, who was managed by the defendant.

The Defendant borrowed the sum of KRW 30 million around January 00, 2003, KRW 40 million around February 00 of the same year, KRW 70 million around November 0, 2005, and KRW 140 million from A.

With respect to loans with the above 30 million won and 70 million won, the Defendant issued a loan certificate at the time of each loan, and around November 0, 2005, issued a written confirmation of borrowing KRW 100 million by adding two above amounts to the above amounts, and as to loans with the amount of KRW 40 million, the Defendant and the Defendant’s partner B, and the Defendant’s mother as a joint issuer, signed a promissory note with the amount of KRW 40 million, and had the Defendant notarized.

On the other hand, the defendant, on March 00, 2006, went to the advice agency in the above △△ which was accompanying the defendant on the ground that he conducted a private financial transaction with the customer on the ground that he was in need of the recommendation agency. On the 00th day of the same month, the defendant borrowed 70 million won from A, but later borrowed 70 million won from A, but is not reinstated, and later transferred 80 million won of the defendant's money deposited with the accident security deposit by the above △ on the 00th day of the same month to A's account by transferring 140 million won of the above loan deposit (80 million won - loan deposit 70 million won) to the debt balance remaining 130 million won.

In this regard, around March 00, 2006, the defendant prepared a statement stating that there is a debt amount of 100 million won to A, and around June 00 of the same year, the defendant prepared a certificate of confirmation recognizing the debt amount of 130 million won, and around July 0 of the same year, the defendant found A's house at around July 0 of the same year, "a debt amount of 130 million won out of the debt amount of 140 million won still remains, and "a debt amount of 100 million won has still been paid to A", and around July 00 of the same year, the defendant confirmed that there remains a debt amount of 130 million won, such as sending a document verifying the content that the remaining debt amount is known to A.

The Defendant prepared a letter of undertaking with the following contents at a place where the date is unknown:

-Name: A

- Resident registration number: 46000 - 100000

- Address: Ansan-si

- As from January 2003, I have received full amounts of money lent to D (Defendant) and gambling;

No iron is any obligation to the principal any longer.

- No notarial document can be returned because it is impossible to find out where there is any notarial document in February 2003.

For this reason, the notarial deed shall be void and shall not be raised any longer due to it.

United States of America

- The civil and criminal responsibility in the event of a violation;

- above A on 00 March 2006

After that, at around November 0, 2005, the Defendant drafted a loan certificate with respect to A on November 10, 2005 with respect to KRW 100,000,000, the Defendant forged one copy of the above letter of undertaking, which is a private document concerning A’s rights and obligations, by taking the general design and seal impression of A, which was in the said letter of undertaking, on the one hand, between A going to a toilet at A and going to a lock. In addition, the Defendant forged one copy of the above letter of undertaking, which is a private document on A’s rights and obligations.

A around February 00, 2007, at the △△△△, an execution clause was granted to a promissory note with respect to the borrowed amount of KRW 40 million and applied for a compulsory auction on the real estate owned by the Defendant’s living together with B. On March 00, 2007, the Defendant filed a lawsuit of demurrer against a compulsory auction on or around March 00, 2007, and filed a lawsuit for objection to the said compulsory auction on or around the same time with the said △△△△△△, which was unaware of the circumstance, submitted the forged promise to the said △△△△, and exercised it as if

B. The judgment of the court below

The court below found the defendant not guilty of this part of the facts charged on the ground that the evidence presented by △△ alone, aside from whether the defendant's obligation against A exists, was prepared on November 0, 2005 by the letter of undertaking of this case, or that it is insufficient to recognize that the defendant prepared the letter of undertaking of this case at will without the consent of △, and that the defendant prepared the letter of undertaking of this case.

C. Judgment of the court below

1) Presumption

In a criminal trial, there is room for doubt that the conviction may be a reasonable doubt.

If there is no evidence to establish a conviction to such an extent that the facts charged are true, it shall be based on the impression of probative value, and even if there is no evidence to establish such a conviction, it shall be determined with the benefit of the defendant (Supreme Court Decision 92Do327 delivered on March 23, 1993).

In light of the following circumstances revealed by the evidence duly admitted and investigated by the court below, namely, A, the defendant and the complainant have engaged in money transactions over a number of three years from 2003 to 2006, and there is no separate loan certificate or receipt (in the event of a substantial amount, it seems that a partial loan certificate has been prepared) when the complainant and the defendant have paid money to the defendant, and there is no clear amount of money traded between the complainant and the defendant, etc., it is questionable that the complainant prepared the letter of commitment of this case without any settlement procedure between the defendant and the complainant that the complainant did not have the obligation to the defendant against the complainant. In light of the record, it is not easy to understand that the complainant prepared the letter of commitment of this case without any settlement procedure between the defendant and the complainant, (No. 9 pages of evidence record), certificate (No. 39 pages of evidence record), background (Evidence record 210 pages of evidence record), etc., the defendant's personal obligation to the complainant is 130 million won or more.

2) Incompetence between the complainant’s statements

With respect to the circumstances in which the instant undertaking was forged, the complainant estimated that the circumstances leading up to the forgery of the instant undertaking had been forged at the time of the investigation by △△, and that the Defendant borrowed money from the Defendant, on several occasions, on November 0, 2005, at KRW 100 million, he made a loan certificate within a 00 nasium parked in front of △△△△△△△△△ (00: 00; 200, the Defendant made a statement to the effect that the Defendant had his seal imprinted at a place where the Defendant’s address puts on the toilet due to the crypt, and 30,000,000, the Defendant made a statement to the effect that he had a seal imprint affixed at a place where the Defendant’s seal imprint affixed on the vehicle. 20,000,000, the Defendant and the Defendant made a statement to the effect that the Defendant had affixed a seal imprint affixed on the 30th left page.

On the other hand, the complainant was investigated on November 00, 200 on the other hand at △△, and at the time of March 00, 2006, at the time of the investigation.

Around November 0, 2005, the General Do Governor made a statement to the effect that the Defendant had the seal affixed at the time of opening the passbook through the Defendant, and had the seal affixed at his own discretion at the time of opening the passbook at Do governor around 2003. The seal imprint was reversed the Defendant’s statement to the effect that on March 0, 2006, 2006, the Defendant had the seal affixed at the office around the southyangyangyangyang, and had the seal affixed at his own expense, and the Defendant had been in custody at the open space under his own car’s name on the part of November 0, 2005 (Evidence record 259, 260 pages), and that the Defendant had voluntarily affixed the instant promise (the evidence record 2.59, 260 pages), to the prosecutor’s statement related to the use of the check in Chapter 3 by the Defendant to the complainant.

In addition, at the time of the Dog investigation, the complainant opened a passbook on November 00, 2007 or around 2004 with respect to the Decree, which is the general letter stamped affixed to the instant letter of undertaking. At that time, when creating a passbook to the addressee, the complainant was bound to affix his seal, but was stored at that time, and collected from the Defendant on or before November 0, 2005, and thus, the complainant stated to the effect that he affixed the general letter of undertaking on or before November 0, 2005 (Evidence 273, 274 pages), and that the complainant again stated that he was 300 won at the time of the Dog without knowledge of the fact that he again stated that he was 200 won at the time of the Dog 300,000 won at the time of the Dog 206.

The complainant stated that he was the victim of this case on November 0, 2005, and stated that he was present as a witness at the trial of this case, and that he was not present at the time of March 00, 2006, and that he was not present at the time of the complaint (Provided, That as seen earlier, on March 00, 2006, the complainant made a statement to the effect that he was present at the seat of the defendant, and that he was present at the seat of this case, and that he was present at the front place of the office, and that he was present at the seat of this case, and that he was present at the seat of this case, and that he was not present at the seat of this case, and that he was present at the seat of this case, and that he was present at the seat of this time, and that he was present at the seat of this case, and that he was present at the seat of the bar, and that he was present at the seat of this time, and that he was present at the seat of this case with his seal imprint at the time of this case.

3) The credibility of the Defendant’s statement that the instant letter of undertaking was forged on November 0, 2005

At the time of March 00, 2006, the complainant stated to the effect that the complainant forged the instant undertaking on November 0, 2005, since there is money that the complainant would receive from the Defendant, and there is no reason to make the Defendant prepare the instant undertaking.

In light of the following circumstances, i.e., evidence duly adopted and examined by the court below and the facts acknowledged by the complainants at the court below, i.e., measures taken against the defendant even after March 00, 2006, if the complainants have obligations to receive them, she should have received them through civil litigation, etc. However, in light of the fact that the complainants merely file an application for compulsory execution on the basis of 40 million won and did not bring a civil lawsuit, she appears to have no obligation of the defendant at the time of 00 won (the complainants did not have any obligation to receive 130 million won since March 00, 2006). It is difficult to view that there was no agreement between the defendant and the 60 million won to return the notarial deed to the 00 won (the above 40 million won notarial deed was prepared by the obligee even if it was recorded to verify the amount of obligation.)

(6) If the defendant had no record of his seal imprint 205. 11. 0. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 6. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 3. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 2. 1. 2. 1. 2. 2. 1. 1. 3 2. 3 2. 3 3. 2. 2. 3. 3. 3. 3. 3. 3 3. 3. 3. 3. 3. 3 3. . 3. 1. 3. . 3. . . 4. 4. 4. 4. 4. 4. 4. 4. 4. 4.

4) On March 00, 2006, the credibility of the complainant's statement that was forged

The defendant's statement that the complainant affixed his seal impression and one half of the bill of this case on March 00, 2006 was known from the facts admitted by the above evidence, namely, ① the complainant's change of the time when the letter of this case was forged and the statement on the reason of forgery was made as seen earlier, it is difficult to obtain the defendant's seal on March 00, 2006 because the letter of this case's statement was not sufficient to have the defendant affixed his seal on the letter of this case's statement because it was not possible to use the document of this case's statement to the effect that the bill of this case was forged and the bill of this case's statement was made on March 0, 206, and it was hard to see that the defendant's new statement was made on March 30, 206, which was the first day of the bill of this case's bill of this case's bill of this case's one million won without the defendant's seal affixed on the bill of this case's statement.

5) Sub-decisions

In addition, the remaining evidence submitted by the prosecutor alone is insufficient to recognize that the defendant has forged the letter of commitment of this case, and there is no other evidence to acknowledge it.

Therefore, this part of the facts charged constitutes a case where there is no proof of crime, and thus, the judgment of the court below should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and it cannot be said that there is an error of law that affected the conclusion of the judgment by misunderstanding the death room, and therefore, the prosecutor's appeal

3. Determination on attempted fraud

A. Summary of this part of the charges

The Defendant deceptioned the above court by submitting a forged letter of commitment to the above court as evidence, and attempted to obtain pecuniary benefits equivalent to the above amount by removing the above borrowed money from the above post office with a favorable judgment of 40 million won. However, even though the above lawsuit did not have become final and conclusive, the Defendant did not have attempted to acquire such pecuniary benefits.

B. The judgment of the court below

The court below rendered a judgment dismissing public prosecution on the ground that the prosecution's indictment constitutes abuse of the right to institute public prosecution or cases where the prosecution's indictment constitutes abuse of the right to institute public prosecution, or is in violation of the provisions of Acts and subordinate statutes, and thus, it constitutes a case where the prosecution's indictment constitutes abuse of the right to institute public prosecution, and the prosecution's indictment constitutes a case where the prosecution is instituted due to the violation of the provisions of Acts and subordinate statutes.

C. Judgment of the court below

In a case where it is deemed that △△ has remarkably exceeded the discretionary power by arbitrarily exercising the authority of prosecution against the defendant, it may be denied the validity of the public prosecution by regarding it as abuse of the authority of prosecution. Here, arbitrary exercise of the authority of prosecution is insufficient simply by negligence in the course of performing official duties, and at least dolusium has any intention (see Supreme Court Decision 2006Do1184, Jul. 24, 2008, etc.). Litigation fraud refers to obtaining a judgment favorable to himself by deceiving △ and thereby receiving property or acquiring pecuniary benefits from the other party by deceiving △ and accordingly, if it is filed with the awareness that there is no right of defense in the lawsuit with the awareness of deceiving △△ even though it is known that there is no right of defense in the lawsuit (see Supreme Court Decision 2006Do5811, Nov. 10, 2006).

In light of the above legal principles, the mere fact that the defendant was indicted for attempted fraud prior to the confirmation of the objection suit of this case filed by the defendant against the complainant does not constitute abuse of the right to institute a public prosecution of this case and constitutes abuse of the right to institute a public prosecution of this case or violation of the legal provisions.

Nevertheless, the judgment of the court below which dismissed the prosecution on this part of the facts charged, on the ground that it constitutes an abuse of the authority to prosecute or a violation of the provisions of the law, is erroneous in the misapprehension of the legal principles as to abuse of the authority to prosecute and fraud in the lawsuit, and therefore, this part of the allegation by △

4. Conclusion

Therefore, since the appeal by △△ regarding the dismissal of prosecution among the judgment below is well-grounded, it shall be reversed pursuant to Article 364(6) of the Criminal Procedure Act and remanded to the court of original judgment pursuant to Article 366 of the Criminal Procedure Act. Since the appeal by △△ as to the acquittal portion among the judgment below is without merit, it shall be dismissed pursuant to Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.