[1] In a case where a private document under the name of a deceased person or deceased person is forged, whether the crime of forging a private document is established (affirmative)

[2] The case holding that the act of forging a private document in the name of the extinguished corporation after the dissolution dissolution is completed constitutes the crime of forging a private document

[1] Articles 231 and 234 of the Criminal Act / [2] Articles 231 and 234 of the Criminal Act

[1] Supreme Court en banc Decision 2002Do18 Decided February 24, 2005 (Gong2005Sang, 534)

Defendant

Prosecutor

Seoul District Court Decision 2003No4126 delivered on July 29, 2003

The judgment below is reversed, and the case is remanded to Seoul Central District Court Panel Division.

1. When a company becomes a merger with another company, all the companies except the surviving company are extinguished, and all their rights and obligations are succeeded to the surviving company as a matter of law without any separate transfer procedure. According to the records, the name of Samsung General Construction Co., Ltd. (hereinafter referred to as " Samsung General Construction") which is the name of each of the documents of this case was changed from July 1993 to Samsung Construction Co., Ltd. and completed the registration dissolution after absorbing it into the existing Samsung Heavy Construction Co., Ltd. on January 27, 1996. Thus, the Samsung General Construction is deemed to have ceased to exist due to merger. Accordingly, the court below is justified to have determined that the defendant is a corporation which does not actually exist at the time of forgery and exercise of each apartment supply contract, deposit certificate, etc. under the name of Samsung General Construction Co., Ltd., Ltd., and there is no error in the misapprehension of legal principles as to the real presence of a person under whose name the document was prepared, as alleged in the grounds for appeal.

2. The court below held that, in order to establish the crime of forging Private Document, since the document in the name of the deceased was prepared as of the day after the death, the crime of forging Private Document is not established, and this legal principle is also applicable to corporations or organizations engaged in activities like legal and social natural persons, and the date of preparation of each deposit slip in the name of Samsung General Construction, which the defendant used by forgery, was registered for the dissolution of Samsung General Construction, and all of the date of preparation of each apartment supply contract in the name of Samsung General Construction, which was registered for the dissolution of Samsung General Construction, was an official space, but all of the date of preparation of each apartment supply contract in the name of Samsung General Construction, was prepared after the registration of dissolution, and therefore, it was eventually prepared after the registration of dissolution, and thus, it did not constitute a crime.

However, we cannot accept the above judgment of the court below.

The crime of forging documents is established in the form and appearance to the extent that the document prepared for the purpose of exercising public credibility as to the authenticity of the document is to be deemed to be a document prepared within the authority of the holder of the title deed. Since the document prepared for the purpose of exercising public credibility as to the authenticity of the document is a form and appearance to the extent that it can be believed to be a document prepared within the authority of the holder of the title deed, as long as the above requirements are met, even if the holder of the title deed is not de facto or has already died before the date of preparation of the document, such document also poses a risk of undermining public credibility, so it is reasonable to deem that the crime of forging documents and private document constitutes the crime of forging documents without standing the public document and private document (see Supreme Court en banc Decision 2002Do18, Feb. 24, 2005). In light of the record, even if the apartment supply contract and deposit slip prepared after the completion of the construction by the defendant's use of the title deed, the act of forging document's use of the document is sufficient to be deemed to be the form and appearance of the document of the defendant.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jack-dam (Presiding Justice)