2019Do8443 (a) Business obstruction

(b) Injury;

(c) Forgery of public documents;

(d) Exercising forged official documents;

Escopics

Escopics

Law Firm LLC, Attorneys Choi Jin-hun et al.

Jeju District Court Decision 2018No245 Decided May 23, 2019

December 24, 2020

The judgment below is reversed, and the case is remanded to Jeju District Court.

The grounds of appeal are examined.

1. Determination on the grounds of appeal on the forgery of an official document and the part on the uttering of an forged official document

A. Relevant legal principles

If a document prepared by a general person as a document prepared within the authority of a public official or a public office, which has the form and appearance to believe that it was a document prepared within the authority of a public official or a public office, the crime of forging a public document is established. However, when a person with the average level of decentralization takes a little attention, if the document was not prepared within the authority of a public official or a public office, and does not have the form and appearance of a public document, it is not established (see Supreme Court Decision 92Do699, May 26, 1992).

On the other hand, in the crime related to documents under the Criminal Act, the document refers to a copy of the original, which is an indication of the intention or idea stated on the object continuously by letters or the virtual code that can substitute it, or a copy by mechanical means that can present the same social function and credibility, etc., and its contents can be admitted as evidence with respect to major matters in the social life by law and law (see, e.g., Supreme Court Decision 2004Do788, Jan. 26, 2006). The image shown on the computer monitor screen cannot be viewed as being continuously fixed on the screen because it is merely an occurrence of electronic reaction when implementing the program to see the image file at each time, and it does not constitute "documents related to documents" as referred to in the Criminal Act (see, e.g., Supreme Court Decision 2008Do1013, Apr. 10, 2008).

In addition, in the crime of uttering of a forged document, an event refers to the use of a forged document according to the method of using it as if it were the authentic document. As long as the forged document is used as if it were the authentic document, there is no restriction on the method of exercising it, so long as it was used as if it were the authentic document, the use of the forged document constitutes an event where the forged document is imageed through a scanner, etc. and then is viewed on the computer screen by transmitting it (see Supreme Court Decision 2008Do5200, Oct. 23, 2008). However, since it is premised on the completion of forgery in the form of a document, if it does not constitute a document with the form and appearance, and thus, it is not possible to establish the crime of uttering of a falsified document.

B. Summary of the facts charged and the judgment of the court below

1) 이 부분 공소사실의 요지는, 피고인이 2016. 6. 28. 17:00경 (콘도미니엄 명칭 생략) 입주민들의 모임인 ○○○○○○○○ 시설운영위원회가 대한민국 정부 기관에서 실체를 인정받아 직인이 등록되었고 피고인은 단체 대표로 인증을 받았다는 등 위원회가 대표성을 갖춘 단체라는 외양을 작출할 목적으로, 서귀포시 △△동 주민센터에서 가져온 행정용 봉투의 좌측 상단 '서귀포시 △△동장' 문구 옆에 피고인이 미리 제작하여 둔 '□□□□□□□□施設運營委員會' 한자 직인과 '○○○○○○○○○○○시설운영 위원회' 한글 직인을 날인한 다음, 주민센터에서 발급받은 피고인의 인감증명서 중앙에 있는 '용도'란 부분에 이를 오려 붙이는 방법으로 행사할 목적으로 공문서인 서귀포시 △△동장 명의의 인감증명서 1매를 위조하고, 이를 피고인의 휴대전화 카메라 기능을 이용하여 촬영한 다음 사진 파일을 위 운영위원회에 가입한 수분양자들이 참여하는 ◇ 메신저 단체대화방에 게재함으로써 행사하였다는 것이다.

2) The lower court affirmed the first instance judgment convicting the Defendant of the facts charged, on the ground that the appearance of documents created by the Defendant was somewhat bad, but in light of the following circumstances, it is reasonable to deem that the appearance of documents as an official document has satisfied the above facts charged.

A) The Defendant appears to have prepared, not from the beginning, the intent to exercise the original document as an original document, but on the group bond printing room by affixing pictures. However, given the characteristics of the photograph files inserted in the group bond printing room, inasmuch as they fall short of the original document, as long as the other party does not expand, it is not easy for the other party to identify the defects of documents.

B) The other party to the event is a Chinese, and even if the appearance of a document was somewhat bad, it is highly likely to be mistaken as a genuine official document, because the other party to the event was not familiar with the appearance of the official document written in the Republic of Korea.

C. Judgment of the Supreme Court

However, we cannot agree with the above determination by the court below for the following reasons.

1) Whether a document is forged or not, i.e., the form and appearance of an official document, must be determined on the basis of the document created by the defendant. The prosecutor does not specify the subject matter of the aforesaid Article in this part of the facts charged in writing, and did not specify the document as an image recorded and transmitted.

2) The protected legal interest in the crime of forging an official document is the public trust for the authenticity of the official document, so whether the document satisfies the form and appearance of the official document shall be determined by the general public with the capacity to distinguish the form and appearance at an average level. The defendant cannot be determined by the criteria for determining the person specifically planned as the other party to the event.

3) Ultimately, determination should be made as to whether the documents created by the Defendant have the appearance and form sufficient to be recorded in a genuine document when the general public, who had an average level of decentralization, appeared. In full view of the following circumstances revealed by the evidence duly adopted and investigated by the lower court, it is difficult to recognize that the documents created by the Defendant have such appearance and form merely based on the evidence submitted by the prosecutor.

A) The Defendant, among the administrative plastic bags, entered the part on which the “AA”, etc. of the person who is in the library for administrative use is indicated, and affixed the official seal of the “○○○○○○○○○ Facilities Steering Committee” and the official seal of the “O○○○○○ Facilities Steering Committee” in turn, and made the instant document by attaching it to the “use of his personal seal impression” column issued by the head of △△△△△△△ in Seopopo City.

B) As a result, the column for the use of the certificate of seal imprints with other parts of the certificate of seal imprints with other parts, and the color of the other parts is both black and black, while the color of the other parts is in different forms, and it is also in different forms. The Defendant’s seal imprint is in black, while the Defendant’s seal imprint is in red color, the Defendant’s official seal imprint and Korean official seal are both affixed and sealed by the Defendant on the column for use. (C) It is difficult to regard the document created by the Defendant as an organization whose public official or public office is registered “the Steering Committee on Facilities 00000,000,” or as a document prepared by the Defendant to prove that the Defendant is the representative of the above organization. If a person with an average level of decentralization pays considerable attention, it seems easy to recognize the above facts.

4) As long as it is difficult to deem that a document created by the defendant has no appearance and form as a public document and thus constitutes a crime of forging a public document, the act of photographing the document and printing the file in the Mesing organization or page room does not constitute a crime of uttering of a forged public document.

5) Nevertheless, the lower court, on the grounds indicated in its reasoning, found that the document created by the Defendant had the appearance and form of the official document, and found the Defendant guilty of this part of the facts charged for forging the official document and the uttering of the forged official document. In so determining, the lower court erred by misapprehending the legal doctrine on the objects and criteria for determining the forgery of the official document under Article 225 of the Criminal Act, thereby adversely affecting the

2. Determination on the remaining grounds of appeal

The lower court convicted the Defendant of interference with business and injury among the facts charged in the instant case. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the establishment of the crime

3. Scope of reversal

As seen earlier, the part of the judgment of the court below regarding the forgery of official document and the uttering of forged official document should be reversed. Since the above reversal part and the remaining conviction part related to concurrent crimes under the former part of Article 37 of the Criminal Act should be sentenced to a single sentence, it should be reversed together.

4. Conclusion

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok

Justices Noh Jeong-chul

Chief Justice Noh Jeong-hee

Justices Kim In-bok