In a case where a forged foreign currency, paper money, or bank note is not a compulsory use in a foreign country and is not a means of payment for transaction in the Republic of Korea, whether the act of exercising such currency constitutes a crime of uttering of forged currency (negative) and whether in such a case, it can be applied to the crime of uttering of falsified investigation document or the crime of uttering of falsified investigation document (affirmative)

In the Criminal Act, since a crime concerning currency is specially related to a crime concerning documents, the crime concerning currency is not established separately. However, in the event that forged foreign currency, paper money, or bank rights do not have legal capacity, it does not constitute “foreign currency, etc. which is circulated in a foreign country” as provided by Article 207(3) of the Criminal Act. Furthermore, in the event that such currency, etc. does not become a means of payment for transaction in the Republic of Korea, it does not constitute “foreign currency, etc. circulated in a foreign country” as provided by Article 207(2) of the Criminal Act. Thus, even when exercising such currency, it does not constitute a crime of uttering of forged currency as provided by Article 207(4) of the Criminal Act. Accordingly, it should be viewed that the crime of uttering of the above investigation document or the crime of uttering of the above investigation document as provided by Article 234 of the Criminal Act can be applied.

Articles 207(2), (3), (4), and 234 of the Criminal Act

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Jong-soo et al., Counsel for plaintiff-appellant)

Defendant

Defendant and Prosecutor

Attorney Jeon Jae-in

Seoul Western District Court Decision 2011No1167 decided February 2, 2012

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

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, the lower court is justifiable to have found the Defendant guilty of violating each Customs Act on the grounds stated in its reasoning. In so doing, 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 intent of,

2. As to the Prosecutor’s Grounds of Appeal

A. The term “documents or drawings”, which is the object of the crime regarding documents under the Criminal Act, refers to the expression of an intention or concept of a person on the material object by using letters or signs corresponding thereto, and its contents can be evidence as to matters which are meaningful in the legal or social life.

Meanwhile, in the Criminal Act, since the crime concerning currency is specially related to the crime concerning documents, if the crime concerning currency is established separately, the crime concerning documents is not established. However, if forged foreign currency, paper money, or bank rights do not have legal capacity, it does not constitute “foreign currency, etc. which is used in a foreign country” under Article 207(3) of the Criminal Act (see Supreme Court Decision 2003Do3487, May 14, 2004). Furthermore, if the money, etc. is not actually used as a means of payment in the Republic of Korea, it does not constitute “foreign currency, etc. distributed in a foreign country” under Article 207(2) of the Criminal Act. Thus, even if the money, etc. is exercised, it does not constitute a crime of uttering of forged currency under Article 207(4) of the Criminal Act, and therefore, if it does not constitute the crime of uttering of documents under Article 234 of the Criminal Act or the crime of uttering of documents under Article 234 of the Criminal Act.

나. 원심은, 이 사건 10만 파운드화는 영국 중앙은행(BANK OF ENGLAND)에서 1971년에 발행한 5파운드화 권종을 스캐너 등을 사용하여 10만 파운드화로 위조한 것으로, 일반 모조지 위에 5파운드화 특유의 도안(앞면: 여왕의 초상화, 두 마리 말이 끄는 전차와 천사 등, 뒷면: 웰링턴 공작의 상반신, 전쟁 중에 싸우는 군인들)이 표시되어 있고 그 전면에 “BANK OF ENGLAND, I PROMISE TO PAY THE BEARER ON DEMAND THE SUM OF ONE HUNDRED THOUSAND POUNDS, LONDON FOR THE GOV AND COMP OF THE BANK OF ENGLAND” 등의 기재와 “BU68 953130”, “￡100000” 등의 표시가 되어 있는 것으로서, 그 도안과 문자내용이 결합되어 통상 화폐가 갖추어야 할 외관상의 객관적 요소들을 갖추어 소지인에 대하여 영국 중앙은행이 100만 파운드(10만 파운드의 오기로 보인다)를 지급할 것을 약속하는 지불수단이라는 외관을 가지게 되었는바, 여기서 도안 부분만이 따로 도화로서 혹은 문자내용 부분만이 따로 문서로서 어떤 사람의 의사 또는 관념을 표현한 것으로 그 내용이 법률상 또는 사회생활상 의미 있는 사항에 관한 증거가 될 수 있다고 볼 수는 없으므로, 이 사건 10만 파운드화에 대한 처벌은 통화에 관한 죄로 의율하여야 하고 문서에 관한 죄로 의율하여서는 안 된다는 이유로 이 사건 공소사실 중 위조사도화행사의 점은 죄가 되지 않는 경우에 해당한다고 판단하였다.

C. However, the lower court’s determination is difficult to accept.

According to the reasoning of the judgment below and the evidence duly admitted by the court below, as above, the 100,000 poundes are indicated on the front and rear sides of the UK, while the signature of the above bank “CHIEF CASIER” was printed on the front and rear side with the promise to pay 100,000 pounds to its holders, and there was no fact that the UK Central Bank issued or distributed 100,000 pounds, and the above 100,00 pounds were forged using a slickner in 1971, and thus there was no compulsory circulation in the UK as well as non-negotiable in the UK.

Examining the above facts in light of the legal principles as seen earlier, since the above 100,000 pounds do not constitute a foreign currency, etc. used in a foreign country as provided by Article 207(3) of the Criminal Act, or a foreign currency, etc. distributed in the Republic of Korea as provided by Article 207(2) of the Criminal Act, even if the Defendant exercised it, it does not constitute a crime of uttering of forged currency as provided by Article 207(4) of the Criminal Act. Meanwhile, even if the above 100,00 pounds have the external appearance of the United Kingdom, it can be deemed as an expression of intent of the Central Bank of the United Kingdom "CHEF CASIE" and its contents can be deemed as evidence of matters within legal or social meaning. Accordingly, the Defendant’s act of exercising 100,000 pounds as stated in this part of the facts charged can be deemed as the crime of uttering of the above investigation documents or the crime of uttering of the above investigation.

Nevertheless, the court below concluded that the defendant's exercise of perjury among the charges against the defendant does not constitute a crime. Thus, the court below erred by misapprehending the legal principles as to the relationship between the crime of telephone call and documents under the Criminal Act and the object of the crime concerning documents under the Criminal Act, thereby affecting the conclusion of the judgment. The prosecutor's ground of appeal pointing this out has merit.

3. Conclusion

As stated in the judgment of the court below, the defendant's argument as to the guilty portion cannot be accepted. However, since the defendant's violation of the Customs Act and the defendant's not guilty's exercise of the above investigation is a concurrent crime under the former part of Article 37 of the Criminal Act, the guilty portion of the judgment of the court below should also be reversed together with the above

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 Kim Shin (Presiding Justice)