[1] The meaning of "a false information" and "a false information" in the crime of deception of public electromagnetic records

[2] In a case where the Defendant, who is a public official in charge of automobile registration, entered “business use” into the register of automobile registration information processing systems in the column of usage knowing that the Defendant is a vehicle which is unable to make a change or a transfer for business use due to the violation of the provisions for vehicle appropriation under the Passenger Transport Service Act, but the first registration date, etc., which is a specific registration of the change or a transfer registration, is true, the case holding that the lower court erred by misapprehending the legal doctrine, although the above act cannot be deemed to constitute “con

[3] The meaning of "false report" in the crime of false entry into public electromagnetic records

[4] The case holding that the court below erred in the misapprehension of legal principles on the ground that the defendant cannot be deemed to have reported false entry in public electronic records, etc. and its exercise, in case where the defendant, a second automobile dealer, applied for change or transfer for business use even though he knew that he was a vehicle which cannot be appropriated for passenger transport business due to violation of the provision on vehicle appropriation in passenger transport service under the Passenger Transport Service Act

[5] The case where an indirect crime of preparing false official document is established

[6] The case holding that in a case where a public official Gap prepared a review report on the application for permission to change the motor vehicle transport business, which states false facts, and obtained approval by attaching it to the review report on the application for permission to change the motor vehicle transport business, and the defendant and the director in charge who knows such circumstances as the chief of the department in charge, who obtained interim approval, and obtained approval in sequence Eul, who did not know such circumstances, the permission to change the motor vehicle transport business was granted, the case holding that the judgment below was erroneous in holding that the act of the defendant and Gap constitutes a joint principal even if it constitutes an indirect crime of the crime of preparing false public documents

[1] “False electronic records” as stipulated in Article 227-2 of the Criminal Act includes not only the case where a person who is not authorized to participate in the creation of electronic records in relation to the person who establishes and operates the electronic records system makes the creation of electronic records or enters the unit information necessary for the creation of the electronic records, but also the case where a person who is authorized to enter the individual unit information within the scope of his/her duties by abusing his/her authority and enters false information within the scope of his/her duties, thereby creating the electronic records contrary to the intent of the establishing and operating entity of the system. In this case, the term “false information” refers to the contents contrary to the truth, and even if he/she intentionally enters the unit information as if he/she did not meet the qualifications required by the relevant Act and subordinate statutes, it cannot be deemed that the false information was made unless there is

[2] In a case where the Defendant, who is a public official in charge of automobile registration, entered the “business use” into the register of automobile registration information processing systems in violation of the provisions for vehicle appropriation under the Passenger Transport Service Act while knowing that the Defendant is a vehicle which is unable to make a change or a transfer for business use, but the first registration date, etc., which is the specific registration details of the change or transfer registration, was recorded true, the case holding that the lower court erred by misapprehending the legal principles, inasmuch as there is no legal basis to regard the fact that the registration information on the “transfer and change of use for business use” in the register of automobile as including the fact that the automobile was changed and transferred for business use, in addition to the fact that the automobile was changed and transferred for business use, and there is no falsity in the facts related to the registration, such as the first registration date, and thus, it cannot be deemed that the above act constitutes the

[3] The crime of false entry into public electronic records under Article 228(1) of the Criminal Code is established when a public official makes a false report to enter false facts in public electronic records, and the term “false report” means a false report to the public official, which goes against the truth.

[4] The case holding that the judgment below which recognized the defendant's crime of false entry into public electronic records, etc. and its event is erroneous in the misapprehension of legal principles, in the case where the defendant, a second automobile dealer, filed an application for change of or transfer to a business use knowing that he is a vehicle which cannot be appropriated for passenger transport business due to the violation of the provision of vehicle appropriation under the Passenger Transport Service Act, but the first registration date, etc., which is a specific registration date, is true.

[5] The person who prepares a false official document shall be limited to a public official who has the authority to prepare the document in the course of performing his/her duties and who is engaged in the duties assisting the person in preparing the document shall not be the subject of the crime of preparation of the false official document. However, in a case where a person who assists the official in the duties of a public official with the authority to prepare the document has, by taking advantage of his/her position, submit the draft of the document containing false details to the official with the authority to approve it, etc. to the official with the authority to prepare the document, an indirect crime

[6] The case holding that, in case where a public official Gap prepared a review report on the application for permission to change the motor vehicle transport business, which states false facts, and obtained approval by attaching it to the review report on the application for permission to change the motor vehicle transport business, and the defendant and the director in charge who knows such circumstances as the chief of the division in charge, approved the above review report in order by the final approving person Eul who did not know such circumstances, and the permission to change the motor vehicle transport business was granted, the above review report shall be deemed Eul when comprehensively considering the contents, form, relationship and purpose of the review report and the fact that the change was made based on the above review report and the review report, and therefore, the person who prepared the above review report, which is a public official document, shall be deemed as Eul, who is only a part of the above review report, and the defendant, who is the interim approving person Eul, cannot be the subject of the crime of preparing false public document, constitutes an indirect crime under Article 31 (1) of the Criminal Act, which does not constitute an indirect crime under Article 31 of the Criminal Act.

[1] Article 227-2 of the Criminal Act / [2] Articles 227-2 and 229 of the Criminal Act, Article 75 (2) (see current Article 84 (2) of the former Passenger Transport Service Act (wholly amended by Act No. 8980 of March 21, 2008), Article 28 (3) and (4) (see current Article 40 (3) and (4)) of the former Enforcement Decree of the Passenger Transport Service Act (amended by Presidential Decree No. 20820 of June 13, 2008) / [3] Article 228 (1) of the Criminal Act / [4] Articles 228 (1) and 229 of the Criminal Act, Article 75 (2) (wholly amended by Act No. 8980 of March 21, 2008), Article 28 (3) and (4) of the former Enforcement Decree of the Passenger Transport Service Act / [208 (3) of the former Enforcement Decree of the Passenger Transport Service Act

[1] Supreme Court Decision 2004Do6132 Decided June 9, 2005 (Gong2005Ha, 1191), Supreme Court Decision 2007Do3798 Decided July 27, 2007 / [5] Supreme Court Decision 90Do1912 Decided October 30, 1990 (Gong190, 2488), Supreme Court Decision 91Do2837 Decided January 17, 1992 (Gong192, 948) (Gong2008Do6988 Decided January 15, 2010)

Defendant 1 and two others

Defendants

Law Firm Barun et al.

Seoul High Court Decision 2010No2240 decided January 14, 2011

From April 8, 2008 to June 12, 2008, the part concerning Defendant 1, among the part concerning Defendant 1 and Defendant 3, as to the non-guilty part concerning the exercise of public electronic records, etc. concerning truck 41 vehicles, and the part concerning Defendant 3, excluding the non-guilty part concerning the exercise of public electronic records, etc. concerning truck 18 vehicles from April 8, 2008 to May 21, 2008, and the part concerning Defendant 2, are all reversed, and this part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of the supplemental appellate brief not timely filed by Defendant 3's attorney).

1. As to the exercise of each public figure, electronic records, etc. concerning Defendant 1 and 2's business buses, and electronic records, etc.

A. The term "alongation of electronic records" in Article 227-2 of the Criminal Act includes not only cases where a person, who is not authorized to participate in the creation of electronic records in relation to the person who establishes and operates the electronic records system, prepares the electronic records or enters the unit information necessary for the creation of the electronic records, but also cases where a person who is authorized by the person who establishes and operates the system to enter the individual information within the scope of his/her duties, by abusing his/her authority and enters false information, thereby creating the electronic records contrary to the intent of the person who establishes and operates the system (see Supreme Court Decision 2004Do6132, Jun. 9, 2005). In such cases, the term "a false information" refers to the contents contrary to the truth, and even if the person intentionally enters the unit information as if he/she did not meet the qualification required by the relevant Act and subordinate statutes, it cannot be deemed that the false information was entered unless there is any falsity in the premise or related

B. The summary of the judgment of the court below on this part of the facts charged is as follows.

(1) According to the facts charged, the chartered bus companies, including Nonindicted Co. 1, etc. (hereinafter “Nonindicted Co. 1, etc.”) did not have received 49 buses for business use, nor did they have filed an application for change of the business plan concerning the expansion of the bus. Furthermore, the said buses may not be registered as a chartered bus after the lapse of three years from the date of initial registration on the register of automobiles. Nevertheless, Defendant 1, a public official in charge of the registration of a car of Pyeongtaek-gu Office, who is the public official in charge of Nonindicted Co. 1, etc., purchased the said buses for business use and transferred them to the register of automobile information processing system, which is a public electronic record, as if Nonindicted Co. 1, etc. acquired the said buses for business use, he forged the automobile registration file, which is a public electronic

(2) As to the above facts charged, the court below found that the non-indicted 1 corporation, etc. received the above buses for business use, and as long as the vehicle register does not contain an application for change of the business plan under the Passenger Transport Service Act, it shall not have a function of public announcement as to the above facts. Thus, even if the "business use" was entered in the column of use, it shall not be deemed that the false contents were entered. On the other hand, the court below held that the entry of the column of use in the vehicle register has an important function of public announcement under the Automobile Management Act and the Passenger Transport Service Act, and that the vehicle register has a function of confirming that it conforms to the provisions on the vehicle appropriation period because the initial registration date is stated in the vehicle registration register, which is the basis for the vehicle appropriation period, is also stated in the first registration date, and that even if the initial registration date was properly entered in the vehicle registration register, it shall be deemed that the entry of the false contents was made in the

C. We affirm the judgment of the court below that the act of entering the “business use” into the “business use” in the column of the register of automobiles cannot be viewed as a false entry even though the former, i.e., non-indicted 1 corporation, etc. did not have received the above buses for business use and did not have filed an application for modification of the business plan concerning the expansion of the vehicles. However, we cannot accept the judgment of the court below that the act of entering the said buses into the “business use” in the “register of automobiles” after the lapse of three years, i.e., the period of appropriation for vehicles,

Article 75(2) of the former Passenger Transport Service Act (wholly amended by Act No. 8980, Mar. 21, 2008) provides that an automobile appropriated for a license, registration, increase, or scrapping of passenger transport service shall not exceed the appropriated period for a vehicle as prescribed by the Presidential Decree within the extent not exceeding three years depending on the type of passenger transport service. Accordingly, Article 28(3) and (4) of the Enforcement Decree of the same Act (amended by Presidential Decree No. 20820, Jun. 13, 2008) provides that an automobile appropriation period for a bus shall be three years, and the last day of the year of initial registration or manufacture shall be calculated as the initial date of the initial registration. In addition, Articles 7(1) and 13 of the Automobile Management Act, Articles 8(2), 17(1)9, 21(1) and 5 of the Decree on Automobile Management shall be classified into the passenger transport service vehicle register which does not meet the requirements of initial registration of passenger transport service.

According to the provisions of each of the above Acts and subordinate statutes and the facts acknowledged by the court below, the above buses cannot be changed for business purposes or transferred for registration because they fall short of the legal requirements for the vehicle appropriation period, which is the legal requirements for registration, and their registration in violation shall be subject to cancellation. Thus, the information of "business use" which is entered in the column for the use of the vehicle register of the automobile registration information processing system does not reflect the fact that the registration information on "the alteration and transfer of use for business use" has not been sufficiently reflected as to whether they have legal qualifications under the premise of the registration. However, there is no legal basis to regard that the registration information on "the alteration and transfer of use for business use" in the automobile register includes the fact that the automobile has been changed for business use and has been transferred for business use, as shown in the above column for use as well as the fact that the automobile has been transferred

Therefore, in light of the legal principles as seen earlier, insofar as the initial registration date, etc., which is a specific registration date for the above change and registration of transfer, is entered into the truth, and it cannot be viewed that there is any falsity in the factual relations related to such registration, such act cannot be deemed as an “compact” in the crime of false electronic records,

Nevertheless, the judgment of the court below that found Defendant 1 and 2 guilty of this part of the facts charged is erroneous in the misapprehension of legal principles as to public electronic records, etc., and the exercise thereof, which affected the conclusion of the judgment. The ground of appeal by Defendant 1 and 2

2. As to Defendant 1’s remaining grounds of appeal

In light of the circumstances stated in its holding, the court below acknowledged that Defendant 1 received a total of KRW 92,350,000 from Co-Defendant 1, etc. as a bribe in return for the registration of business bus or truck, and found Defendant 1 guilty of all the charges of bribery, including the (vehicle No. omitted), which were found not guilty for the reasons stated in its holding.

In light of the records, the court below's measures are consistent with the rational free evaluation of the judges of the fact-finding court, and there is no error of law by misunderstanding facts beyond the bounds of the principle of logic and experience and free evaluation of evidence, which affected the conclusion of the judgment, as alleged in the grounds of appeal.

3. As to Defendant 2’s remaining grounds of appeal

The offense of false entry into public electronic records, etc., as provided in Article 228(1) of the Criminal Act, shall be established by having a public official make a false report to enter false facts in public electronic records, and the term "false report" means to make a false report against the truth.

According to the reasoning of the judgment below, Defendant 2’s certificate of completion of report on modification of the passenger transport business plan (defluence and scrapping) submitted by Co-Defendant 2 to the public official in charge of registration of the motor vehicle through Co-Defendant 2 of the court below, and the annual awareness of buses he/she intends to borrow and borrow for business purposes in the used vehicle sales contract and the registration certificate. Meanwhile, in the motor vehicle register, the registration information on “use change and transfer of use for business purposes” includes the fact that the motor vehicle has been changed and transferred for business purposes, in addition to the fact that the motor vehicle has been changed and transferred for business purposes, there is no legal basis to regard it as including the fact that the motor vehicle has been equipped with qualifications under the law necessary for the change and transfer registration. Therefore, insofar as the initial registration date, which is the specific registration date of the change and transfer

Therefore, in light of the above legal principles, even if the above defendant applied for change of business use or transfer registration of the above bus with knowledge that it cannot be used for passenger transport business because the age of the bus subject to application for change or transfer registration is not less than three years, it cannot be deemed that the above defendant filed a false report, unless there is any falsity in the above report.

Nevertheless, the judgment of the court below that found the defendant guilty on this part of the facts charged is erroneous in the misapprehension of legal principles as to the crime of false entry into public electronic records, etc. and the crime of its exercise, which affected the conclusion of the judgment. The above defendant

4. As to Defendant 3’s remaining grounds of appeal

A. As to the preparation of each false official document and the uttering of each false official document

(1) The person who prepares false public documents is limited to a public official who is authorized to prepare documents in the course of performing his/her duties and who is engaged in the duties assisting the person who prepares false public documents shall not be the subject of the crime of preparation of false public documents. However, in cases where a person who assists the official who is authorized to prepare public documents has had a public official with the authority to prepare false documents submit a draft document stating false matters to his/her superior for approval for the purpose of uttering by taking advantage of his/her position, etc., and let him/her approve it, an indirect crime of preparation of false public documents is established (see Supreme Court Decisions 91Do2837, Jan. 17, 1992; 2009Do963, Jan. 14, 2010).

(2) According to the reasoning of the lower judgment, the lower court found Defendant 3 guilty of preparing a false official document in collusion with Co-Defendant 3 of the lower judgment and making it possible to use the false official document in collusion with the lower court’s judgment by making a false statement on the requirements such as the conclusion of the automobile sales contract required at the time of increasing the freight trucking services (hereinafter “instant review protocol”).

(3) However, according to the evidence admitted by the court below, Co-defendant 3 of the court below prepared the review report of this case, and approved the application review report for permission of trucking transport services (hereinafter "the review report of this case") along with "the review report of the application for permission of alteration to trucking transport services" (hereinafter "the review report of this case"), and approved the review report of this case in order of the above Defendant and the construction disaster management director, the above Defendant and the construction disaster management director, the above Defendant and the construction disaster management director, the freight trucking service was permitted

In full view of the contents, form, relationship, and purpose of the review report of this case and the review report of this case, the review report of this case is merely a part of the contents of the review report of this case, which is an official document, and the person who prepared the review report of this case, including the review report of this case, shall be deemed to be the non-indicted 2, who is the final approving authority.

Thus, the court below's decision that the defendant and co-defendant 3 are co-principals, as well as co-defendant 3 of the court below's decision, which is the author of the review report of this case which is only a part of the contents of the review report of this case, and as co-defendant 3 of the court below cannot be the subject of the crime of preparing the false official document of this case.

However, according to the fact-finding and its employment evidence of the court below, since the above defendant 2 made a final approval without knowing the fact that the review report of this case, which was approved by the court below for the interim approval, was made by the above defendant or co-defendant 3 of the court below, the above defendant's act of co-defendant 3 of the court below constitutes a case where the above defendant and co-defendant 3 of the court below approved and prepared a false official document, and it constitutes an indirect crime for preparing a false official document. In this case, the indirect crime is punished with the same punishment as the person who committed the crime under Articles 34 (1) and 31 (1) of the Criminal Act, and such an error does not constitute an error of law that affected the conclusion of the judgment (see Supreme Court Decision 97Do1180, Jul. 11, 1997, etc.).

In the end, although there are some inappropriate points in the reasoning of the court below, it is just in its conclusion that the above defendant is established with the crime of preparing false official documents and the crime of uttering thereof, and there is no error of law by misunderstanding the legal principles as to the crime of preparing false official documents, which affected the conclusion of the judgment, contrary

B. On June 2007, concerning the exercise of public electronic records, etc. concerning the illegal disposition after the acceptance of the bribery and the four commercial buses, and the use of such electronic records, etc.

(1) The probative value of evidence is left to a judge’s free judgment, but such judgment is in accordance with logical and empirical rules, and in a criminal trial, criminal facts are allowed to be proved to the extent that there is no reasonable doubt (see Supreme Court Decision 2007Do1950, May 10, 2007, etc.).

(2) The summary of the judgment of the court below on this part of the facts charged is as follows.

According to the facts charged, Defendant 3, in collusion with Defendant 1, etc., registered four buses as a charter bus for business use, and received from Defendant 1 to Defendant 1's account on June 8, 2007 and received KRW 5 million on June 11, 2007 from Defendant 1, and instead registered as to the four buses for business use.

The lower court determined that Defendant 1 participated in Defendant 1’s crime and received a bribe from Co-Defendant 1 of the lower judgment in light of the circumstances, including the fact that Defendant 1 remitted KRW 4 million among the money remitted from Co-Defendant 1 of the lower judgment to the account in the name of Nonindicted 4, a punishment of Defendant 3, etc.

(3) However, we cannot accept the judgment of the court below for the following reasons.

According to the evidence that was rejected by the court below, Defendant 3’s co-defendant 3 operated the building company in the name of non-indicted 4, which is the type of the above defendant’s punishment. Co-defendant 4 of the court below entrusted non-indicted 3 with the new house construction work on or around June 2007. Non-indicted 3 again left the building company non-indicted 5 with part of the new house construction work. Co-defendant 4 of the court below's decision delivered part of the construction work directly to non-indicted 5 upon the request of non-indicted 3. Further, according to the above evidence, the defendant 1 transferred KRW 4 million to the non-indicted 4's account on June 8, 2007 and deposited KRW 400,000 to the non-indicted 4's account on June 11, 2007, the defendant 1 transferred the money to the above co-defendant 400,000 won to the above non-indicted 4's account.

In addition, according to the reasoning of the judgment of the court below, the statement of Co-defendant 1 of the court below employed by the court below is merely a presumption that Defendant 3 was aware of the crime committed by Defendant 1, and Co-defendant 1 of the court below stated that there was no fact about Defendant 3 in relation to his business. Furthermore, unlike the prosecutor's office, Defendant 1 did not make a clear statement as to whether or not he paid the above money as a bribe even if he transferred it by asking the account number of Defendant 4 to Defendant 3 in the court of first instance, and the prosecutor's statement of Defendant 1 that he paid the above KRW 4 million to Defendant 3 as a bribe cannot be seen as lacking credibility in light of the statement of Co-defendant 4 of the court below as to the circumstance of transfer of KRW 4 million. As long as it was confirmed that the above KRW 4 million among the money received as a bribe was not delivered to Defendant 3, as long as it was not delivered to Defendant 1, Defendant 1 and Defendant 1's above part of this case's digital records.

Nevertheless, the judgment of the court below that found Defendant 3 guilty of this part of the facts charged is erroneous in violation of logical and empirical rules and the principle of free evaluation of evidence, thereby affecting the conclusion of the judgment. The ground of appeal on this part by Defendant 3 is with merit.

C. As to the remainder of each accepted acceptance, unjust disposition, and acceptance of bribe

In full view of the circumstances stated in its reasoning, the lower court found Defendant 3 guilty of all the charges on this part of the charges by recognizing that Defendant 3 received KRW 15,30,000 from Co-Defendant 5 and 4 as a bribe in return for the registration of unlawful trucks

In light of the records, the above measures of the court below are consistent with the rational free evaluation of evidence by the judge of the fact-finding court, and there is no error of law in violation of logical and empirical rules and the free evaluation of evidence, contrary to what is alleged in the grounds of appeal.

5. Scope of reversal

For the foregoing reason, among the convictions against the Defendants in the judgment below, the part concerning each public electronic document, etc. concerning business buses, and the part concerning each public electronic document, etc. concerning each public electronic document, etc., and each public electronic document, etc., with Defendant 2, and the part concerning each false public electronic document, etc., and the part concerning each public electronic document, etc., with Defendant 2, and the part concerning each public electronic document, etc., with respect to each public electronic document, etc., and the part concerning each public electronic document, etc., with respect to each public electronic document, etc., with respect to Defendant 3, shall be reversed on June 207.

In addition, the part concerning Defendant 1's 42 commercial buses which were found guilty at the court below among the illegal actions after acceptance of each bribe against Defendant 1 should be reversed in relation to the above 42 commercial buses which are reversed in relation to the ordinary concurrent crimes with each other. The part concerning Defendant 1's 42 commercial buses should be reversed in relation to (vehicle number omitted) commercial concurrent crimes with the part concerning illegal actions after acceptance of the bribe from October 2007 to December 2, 2007, which is reversed as above.

In addition, among the parts found guilty at the court below, each part of the acceptance of bribe and each part of the acceptance of bribe against Defendant 1 should be sentenced to a single punishment for all of them in relation to each of the concurrent crimes under the former part of Article 37 of the Criminal Act with respect to the defendant's business bus which is reversed as above, each part of the acceptance of bribe concerning the defendant's business bus, each of the use of the electronic documents, the use of the electronic documents, and each of the unlawful actions after the acceptance of the bribe, each of the false public documents, the use of the false public documents, and the remainder of each acceptance of bribe and each of the acceptance shall be reversed. Thus, it shall be reversed together with the above.

On the other hand, on October 31, 2007, the court below found Defendant 1 and 3 not guilty on the part concerning the use of each public electronic document, etc., and the part concerning each public electronic document, etc., and each public electronic document, etc., and each part concerning the 41 truck from April 8, 2008 to June 12, 2008 concerning the 41 truck, and did not appeal by the prosecutor. However, in each of the above parts, the former found Defendant 1 guilty of the above 10 truck and the part concerning the defendant 3 guilty of the above 10 truck, and the part concerning the 23 truck from May 22, 2008 to June 12, 2008 against Defendant 3, and each of the above parts concerning the 41 truck was reversed at least 419 to June 12, 2008, and each of the above part concerning the defendant's 10 truck was reversed.

6. Conclusion

Therefore, from April 8, 2008 to June 12, 2008, the part of the judgment of the court below as to Defendant 1 with respect to Defendant 1, among the part as to Defendant 1 and Defendant 3, the part concerning Defendant 1, excluding the non-guilty part concerning the use of the public electronic records, etc., and the part concerning Defendant 3, from April 8, 2008 to May 21, 2008, with respect to the use of the public electronic records, etc., concerning the 41st truck, and the part concerning Defendant 3, excluding the non-guilty part concerning the use of the public electronic records, etc., concerning the 18th truck and the part concerning Defendant 2, shall be reversed and remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all

Justices Kim Ji-hyung (Presiding Justice)