Defendant 1 and one other

Defendant

Kim Jong-dae (Court of Prosecution) and Lee Jong-soo (Court of Public Trial)

Attorney Kim Min-soo

Jeonju District Court Decision 2015Gohap14 decided May 19, 2015

The Defendants’ appeal is dismissed.

1. Summary of grounds for appeal;

A. Legal principles

1) In light of the registry officer’s formal review authority, etc., the crime of obstruction of performance of official duties by fraudulent means cannot be established.

2) Defendants’ act constitutes legitimate act.

B. Unreasonable sentencing

The punishment (one million won of fine) of the judgment of the court below is too unreasonable.

2. Judgment on misapprehension of legal principles

A. The Defendants asserted the same purport as the grounds for appeal in the court below, and the court below rejected the above assertion in detail by stating in detail the decision. If the circumstances acknowledged by the court below are followed by the evidence duly adopted and investigated by the court below, the crime of obstruction of performance of official duties by deceptive means is established. The Defendants’ assertion in this part is rejected.

① In order to file an application for the registration of ownership transfer under Defendant 1 with respect to the non-indicted’s real estate owned by the person liable for registration, the non-indicted shall appear at the registry or an attorney or a certified judicial scrivener shall submit an application for registration with delegation from the non-indicted who is the person liable for registration. In the event a certified judicial scrivener, etc. receives a confirmation document prepared by him, the registrar does not have any obligation to examine the defect in the confirmation document, and it is sufficient to proceed with the procedure for filing an application for registration on the premise that the said confirmation document is a legally prepared confirmation document. As seen in the instant case, the certified judicial scrivener submitted a document confirming that he was delegated by the non-indicted who is the person liable for registration, and the registrar received the application by fraudulent means, the crime of obstruction

② Although the Defendants are changed to the purport that only a formal examination authority exists with respect to a registry official, and it does not constitute official duties in the crime of obstruction of performance of official duties by fraudulent means due to lack of substantial examination authority, even if the registry official with authority of formal examination has a duty to examine whether the documents attached to the application for registration have been prepared or not, the registrar has a duty to examine the documents attached to the application for registration when he becomes aware that the documents attached to the application for registration have been forged, and thus, the registrar’s duty is deemed to constitute duties in the crime of obstruction of official duties

③ The Defendants asserted that the registration of ownership transfer of this case conforms to the substantive relationship, and that there is no minor offense at the time of applying for registration in light of the fact that the crime of false entry in the original of a notarial deed is not established if the registration conforms to the substantive relationship. However, since the crime of obstruction of performance of official duties by fraudulent means differs from the crime of false entry in the original of a notarial deed and the crime of obstruction of official duties by fraudulent means, the above fact that the registration of ownership transfer of this case conforms to the substantive relation of rights

④ The Defendants asserted that the defendant did not neglect the duty of care of a certified judicial scrivener even if the defendant, who was neither the vice-person nor the vice-person, did not neglect his duty of care. However, if the certified judicial scrivener is delegated by the person liable for registration, even if he did not have the duty of care to substitute for the vice-person, it is possible to place another person with the knowledge that he was not the person liable for registration even if he was not the person liable for registration, and thus, as in the instant case, the crime of obstruction of performance of official duties by deceptive means is established when the defendant Kim Jae-in, who is the certified judicial scrivener, prepares a document for confirmation by affixing his vice-person who is not the person liable for registration, as a matter of course.

B. The phrase “act which does not contravene social norms” under Article 20 of the Criminal Act refers to an act which can be accepted in light of the overall spirit of legal order or the social ethics or social norms surrounding it, and whether certain act is justified as a justifiable act that does not violate social norms and thus, the illegality of the act is excluded should be determined individually and reasonably under specific circumstances. Thus, in order to recognize such legitimate act, the following requirements should be met: (i) legitimacy of the motive or purpose of the act; (ii) reasonableness of the means or method of the act; (iii) balance between the protected interests and the infringed interests; (iv) urgency; and (v) supplementary nature that there is no other means or method other than the act (Supreme Court Decision 2008Do699 Decided October 23, 2008).

According to the evidence duly adopted and examined by the court below, the defendants' act of preparing the confirmation document by sealing Defendant 1's unmanned on behalf of the non-indicted 1, who is responsible for registration, is difficult to view that the above legitimate act satisfies the above requirements. Thus, the defendants' above assertion is rejected.

3. Judgment on the assertion of unfair sentencing

In full view of the circumstances leading up to the commission of the instant crime, there is no history of criminal punishment, and Defendant 1 did not have a criminal record of probation or heavier, but the lower court appears to have already determined the sentence considering the above favorable circumstances. The Defendants’ submission of the attached document to the application form to the applicant form for registration by using Defendant 1’s active method to impair the fairness of the duties of the registrar, and other various sentencing conditions as shown in the instant pleadings, such as the Defendants’ age, criminal records, character and conduct, environment, family relationship, motive and circumstance of the crime, and circumstances after the crime, etc., it cannot be said that the sentence imposed by the lower court is too unreasonable.

4. Conclusion

Therefore, the Defendants’ appeal is dismissed in accordance with Article 364(4) of the Criminal Procedure Act on the ground that there is no reason to file an appeal, and it is so decided as per Disposition (However, according to Article 25 of the Regulation on Criminal Procedure, Article 70(1) and Article 69(2) of the Criminal Act on the 3rd side of the decision of the court below is “Article 70(1) and Article 69(2) of the Criminal Act on the 14th side of the decision of the court below.”

Judges Park Chang-chul(Presiding Judge)