[edit] Supreme Court Full Bench Decision 2000Do1985 delivered on April 19, 2001 [Unlawful Uttering of Official Document]
【Main Issues】
In case when a third person presents another person's driver's license after demanded by a third party to present an ID card for the purpose of identity verification, whether or not such act constitutes the unlawful uttering of official document (affirmative)
【Summary of Decision】
[Majority Opinion] A driver's license is an official document that proves that the person has passed the driving test and is permitted to drive. The driver's license shows that the person on the license has passed a driving test and serves the function of "proof of qualification" as well as "proof of identity." The front side of the driver's license includes the driver's (one who received the license) name, residence registration number, address, and picture. And since the backside includes the mentioned items' change information and requires the issue renewal within the interval period, it is sufficient for proving identity and likeliness and also guarantees the validity of the mentioned items. Therefore, the interpretation that limits the driver's license as only a proof of qualification and ignores the function of identification is unreasonable. The Certification of Seal Imprint Act, the Act of Election of Public Affairs and Prevention of Election Malpractice, and the Registration of Real Estate Act approves the use of a license for identification purpose. Even though the residence registration certificate is the principal identification certificate under the Resident Registration Act, the regulation expects other vouchers or methods to provide identification for the people who do not provide their residence registration certificate. In our society, half of the people who are old enough to be issued a driver's license have one and the ratio is much higher among people who are involved in economic activities. In bank transactions, the use of driver's license is approved as an identification certification and it is often used as the equivalent ID card as the residence registration certificate ID card. Therefore, the situation where a third person requests an identification certificate for the purpose of verification and the person provides another person's driver's license is against the purpose of its use and it is justified to view it as an unlawful uttering of official document.
[Dissenting Opinion] The unlawful uttering of official document will occur only where the official document is for a specific use and a person misuses that document for other than its specified use. Since the driver's license's specified use is to carry it while driving and provide it to the police when they request it rather than for an identity verification purpose, the act of providing another person's license for false identification purpose is not exercising the specified use of the driver's license. Therefore, such behavior does not constitute an unlawful uttering of official documents. Under Article 230 of the Criminal Act, the elements for unlawful uttering of official document are stipulated as 'one who falsely presents as public service official or public documents or pictures.' The textual content of this stipulation does not ask whether or not all the official documents are included in the objects of the act or the right user's use of the document is specified. Additionally, in situations where the authorized user and his/her usage of the official document cannot be specified, it is even questionable if the false presentation rules even apply. Therefore, if this is affirmed (if the rules apply to the previous situation), there is risk that the scope of punishment may drastically increase. The situations, where the crime's elements are too abstract, general, or the application of the crime's scope is too wide or comprehensive as to make it so indefinite in the view of an ordinary citizen with sufficient judgment capacity to make him wonder if such act is a prohibited act, are in violation of criminal law principles. Since the official document includes the proof of the qualification of the specified person, personal information, and a personal picture in order for an official document to prove that the person who holds it is qualified for its use, the proof of personal identification is also imminent. But even though the official document for qualification purposes also serve an imminent role in proof of personal identification, it cannot be seen that the primary purpose of the qualification document is to prove one's identity. According to Article 17-9 of the Resident Registration Act, a residence certificate is a general proof of identification for people over the age of 17. And under Article 68 of the Road Traffic Act, a driver's license is an official document that proves that the person passed the driver's license test and is permitted to drive a vehicle and the primary purpose is specifically to present it to the police when they ask for a driver's presentation of it in order to prove that the person is permitted to drive. The possessor's identification confirmation is only a secondary role for the official document. Even though the driver's license is often used for identification purposes in actual transactions and some specified fields categorized by some statutes, such use is still merely a secondary role of the driver's license and cannot be the primary role. The mere fact of its wide use for identification does not itself make it the main role. This situation also applies to official documents such as a passport, public service personnel card, employee card, student card. So if one takes the view that the mere fact that an official document for qualification is widely used for identification purposes is sufficient enough to show that its primary purpose is for identification, then the punishment scope due to the misbehavior will drastically increase. This situation, under the principles of criminal law, should be interpreted more narrowly and the punishment scope should be limited more reasonably. Furthermore, this situation substantially contradicts the previous judgments. The purpose of the crimes regarding official documents is to protect the credibility of its substance and contents, so it is hard to see that the mere misuse of the official document is in violation of the rules regarding the documents. Furthermore, when such misuse violates other genre of rules, it can be punished according to the violation of the rule. For these reasons, there is no significant need to limitlessly punish the misuse of documents.
【Reference Provisions】 Article 230 of the Criminal Act, Articles 68, 69 and 77 of the Road Traffic Act, Articles 17-9 and 21-2 of the Resident Registration Act, Paragraphs 3 and 4 of the Passport Act
Article 230 of the Criminal Act (Unlawful Uttering of Official Document) A person, who unlawfully utters a document or drawing of a public official or public office, shall be punished by imprisonment or imprisonment without prison labor for not more than two years or by a fine not exceeding five million won.
Article 68 of the Road Traffic Act (Driver's License) (1) Any person who intends to drive a motor vehicle, etc., shall obtain a driver's license from the Commissioner of Local Police Agency.
(2) Driver's license referred to in paragraph (1) shall be classified as follows:
1. First-class license
License for large-sized vehicles;
License for ordinary vehicles;
License for small-sized vehicles;
License for special vehicles;
2. Second-class license
License for ordinary vehicles;
License for small-sized vehicles;
License for motor bikes; and
3. Driver's practice license
First-class ordinary practice license
Second-class ordinary practice license
(3) The Commissioner of the Local Police Agency may, under conditions as determined by the Ordinance of the Ministry of Government Administration and Home Affairs, impose any conditions required for the driver's license, such as restricting the structure of motor vehicle, etc. which may be given, pursuant to the physical conditions or driving ability of the person who is to obtain the driver's license.
(4) The Commissioner of the Local Police Agency may newly impose, or after, the conditions under the provisions of paragraph (3), pursuant to the physical conditions or driving ability of the person who has undergone the aptitude test under the provisions of Articles 74 and 74-2.
(5) No person who has obtained a second-class driver's license shall drive the motor vehicles for business as provided for in the Passenger Transport Service Act or the Trucking Transport Business Act: provided, that the same shall not apply to the case where one drives a motor vehicle by renting a vehicle for rent-a-car business under the Passenger Transport Service Act.
(6) Kinds of motor vehicle, etc. which may be driven by the person having obtained a driver's license (excluding the driver's practice license) under the provisions of paragraphs (1) and (2), shall be determined by the Ordinance of the Ministry of Government Administration and Home Affairs pursuant to the kinds of motor vehicles, etc. as provided for the in the Automobile Management Act and the Construction Machinery Management Act.
Article 69 of the Road Traffic Act (Delivery, etc. of Driver's License) (1) Person who intends to obtain a driver's license shall pass a test for driver's license, and a driver's license shall be delivered to such person having passed it, under the conditions as determined by the Ordinance of Ministry of Government Administration and Home Affairs.
(2) A driver's license shall take effect from the time when the driver's license under the provisions of paragraph (1) has been delivered to the principal or his representative.
Article 77 of the Road Traffic Act (Obligation to Carry and Present Driver's License) (1) When driving a motor vehicle, etc., one shall carry with himself a driver's license (including an international driver's license under the provisions of Article 80 and a construction machinery operator's license pursuant to the Construction Machinery Management Act; hereinafter referred to as the "driver's license, etc."). or a certificate substituting a driver's license (referring to a temporary driver's certificate under the provisions of Article 76, an order to attend and a notice for payment of penalty under the provisions of Article 99, and a notice under the provisions of Article 102-2 (2); hereinafter the same shall apply).
(2) A driver of Paragraph (1) should present driver's license, etc. or a certificate substituting a driver's license when asked by a police officer while driving.
Article 17-9 of the Resident Registration Act (Confirmation by Resident Registration Certificate) (1) In the following cases, if it is required for carrying out the affairs to confirm the name, photograph, resident registration number, or address of a person who is seventeen years or more of age, a State agency, local government, public or social organization, or enterprise, etc. shall confirm it by the resident registration certificate of the persons concerned without demanding any other documentary evidence; provided, that this shall not apply to the cases as prescribed by the Presidential Decree:
1. Where it receives any civil affair documents and other documents;
2. Where it issues a certificate accrediting qualification to a specified person; and
3. Where it is necessary for identifying the status of a person
(2) <deleted>
Article 21 of the Resident Registration Act (Penal Provisions) (1) omitted
(2) Person who falls under any of the following items shall be punished by imprisonment for not more than three years, or by a fine not exceeding Won 10 million:
1. A person who violates the provisions of Paragraph 2 of Article 10, or person who reports or applies any false fact as to the resident registration or resident registration certificate;
2. A person who offers, or receives an offer of, the resident registration certificate as a means to secure a performance of obligation;
3. A person who has created false resident registration number by the method of providing the resident registration numbers under Paragraph 4 of Article 7, and use it for the profits on the goods or property of himself or other persons;
4. A person who conveys or spreads to others the programs to create the false resident registration numbers;
5. A person who inspects the resident registration card of other person or obtains the delivery of its copy or abstract by the falsity and other illegal means in contravention of Paragraph 2 of 3 of Article 18;
6. A person who violates the provisions of Paragraph 2 of Article 18-2;
7. A person who violates the provisions of Paragraph 2 or 3 of Article 18-3;
8. A person who illegally uses another's resident registration certificate; and
9.A person who makes an illegal use of other person's resident registration number for the profit on the goods or property of himself or other persons.
Article 13 of the Passport Act (Punishment) (1)~(2) omitted
(3) Any person, who has used other person's passport, shall be punished by imprisonment with prison labor for not more than two years or by a fine not exceeding Won 5 million.
(4) Any person falling under each of the following items shall be punished by imprisonment with prison labor for not more than one year or by fine not exceeding Won 3 million:
1. A person who has transferred or lent his passport to other person or arranged such transfer and lending of any passport for the purpose of letting other person use the passport;
2. A person who has been transferred with or has lent other person's passport for the purpose of suing it;
3. A person who has used a passport, the validity of which has been lost; and
4. A person who has provided or been provided with a passport as a means to secure the fulfillment of an obligation.
【Reference Cases】 Supreme Court Decision 74Do1695 delivered on September 4, 1974 (Gong1974, 7962), Supreme Court Decision 81Do130 delivered on December 8, 1981 (Gong1982, 186), Supreme Court Decision 82Do1985 delivered on June 28, 1983 (Gong1983, 1211), Supreme Court Decision 88Do1593 delivered on March 28, 1989 (Gong1989, 708) (changed), Supreme Court Decision 90Do1877 delivered on May 28, 1991 (Gong1991, 1820) (changed), Supreme Court Decision 91Do1052 delivered on July 12, 1991 (Gong1991, 2189) (changed), Supreme Court Decision 91Do3269 delivered on November 24, 1992 (Gong1993Sang, 299) (changed), Supreme Court Decision 93Do127 delivered on May 11, 1993 (Gong1993Ha, 1753), Supreme Court Decision 96Do1733 delivered on October 11, 1996 (Gong1996Ha, 3375) (changed), Supreme Court Decision 99Do206 delivered on May 14, 1999 (Gong1999Sang, 1219), Supreme Court Decision 99Do1237 delivered on February 11, 2000 (Gong2000Sang, 737) (changed)
【Defendant】 Defendant
【Appellant】 Prosecutor
【Court of First Instance】 Uijeongbu Branch of Seoul District Court judgment 99Godan4324 delivered on January 21, 2000
【Court of Second Instance】 Seoul District Court judgment 2000No1677 delivered on April 7, 2000
【Disposition】 The court below's judgment shall be reversed and the case shall be remanded to the Appellate Division of Seoul District Court.
【Reasoning】1. A. According to the court below regarding unlawful uttering of official document as one of the counts, since a driver's license is an official document that proves that the person has passed a driving test and is permitted to drive and the original specified use is to carry it while driving and provide it to the police when they request it rather than for identity verification purpose, and the act of presenting another person's driver's license to police officials in order to defraud is not exercising the main purpose of the driver's license, therefore, it does not constitute an unlawful uttering of official documents. Therefore, it is judged that the act of presenting another person's driver's license, as a suspect under the Punishment of Violence, etc. Act, to a police official to defraud his identity does not constitute an unlawful uttering of official document.
B. The above decision by the court below is in accordance with the opinion of this Court regarding the presentation of the driver's license and the requisites for unlawful uttering of official document.
2. A. Since Article 230 of the Criminal Act narrowly stipulates the elements of the crime of the unlawful uttering of official document as the "person who falsely presented as a public official, public documents or pictures," and there is a concern for the possibility that the scope of punishment may significantly increase, this Court has strictly interpreted main subject, object, and shape of this count and has limited the scope of punishment to a reasonable level. Furthermore, it is consistent with the principle to continue this practice.
B. However, this Court decides that, for the following reasons, the proper interpretation and application of the law should change the position of the previous and recent position on the formation of unlawful uttering of official document and the presentation behavior of a driver license.
First, a driver's license is an official document that proves that the person has passed the driving test and is permitted to drive. The driver's license shows that the person on the license has passed a driving test and serves the function of "proof of qualification" as well as "proof of identity." The front side of the driver's license includes the driver's (one who received the license) name, residence registration number, address, and picture. And since the backside includes items' change of information and requires the issue renewal within the interval period, it is sufficient for proving identity and likeliness and also guarantees the validity of the mentioned items. Therefore, the interpretation that limits the driver's license as only a proof of qualification and ignores the function of identification is unreasonable. The Certification of Seal Imprint Act, the Act of Election of Public Affairs and Prevention of Election Malpractice, and the Registration of Real Estate Act approve the use of a license for identification purpose.
In addition, even though the residence registration certificate is the principal identification certificate under the Resident Registration Act, the regulation expects other vouchers or methods to provide identification for the people who do not provide their residence registration certificate.
In our society, half of the people who are old enough to be issued a driver's license have one and the ratio is much higher among people who are involved in economic activities. In bank transactions, the use of driver's license is approved as an identification certification and it is often used as the equivalent ID card as the residence registration certificate ID card.
According to the above statement, the situation where a third person requests an identification certificate for the purpose of verification and the person provides another person's driver's license is against the purpose of its use and it is right to view it as an unlawful uttering of official document.
C. Therefore, the previous judgment that interpreted the presentation of driver's license and the elements for unlawful uttering of official document differently than this judgment's interpretation (Supreme Court Decision 88Do1593 delivered on March 28, 1989, Supreme Court Decision 90Do1877 delivered on May 28, 1991, Supreme Court Decision 91Do1052 delivered on July 12, 1991, Supreme Court Decision 91Do3269 delivered on November 24, 1992, Supreme Court Decision 96Do1733 delivered on October 11, 1996, Supreme Court Decision 99Do1237 delivered on February 11, 2000) are inconsistent with this judgment's opinion and they are overruled.
3. Nevertheless, the court below acquitted on the charge of unlawful uttering of official document as one of the counts, and the erroneous decision of the court below's as to the unlawful uttering of official document principles had negatively affected the judgment. Therefore, the ground for appeal pointing this out is justified.
According to Article 37 of the Criminal Act regarding arbitrary decision on multiple offenses, the innocence and guilty parts of the decision of the court below should be judged as one sentence, and the decision of the court below should be reversed. This case should be remanded to the court below as per Disposition. Except for the dissenting opinion by Justices Song Jin-hun, all other Justices assented in the conclusion of the judgment.
4. The dissenting opinion of Justice Song Jin-hun
A. According to the majority opinion, the driver's license serves the primary role of 'qualification verification' that the person marked on the card passed the driver's license test and at the same time, it also serves the role of 'identity verification' for the person who presents it. Since, in many statutes and real transactions, the license is widely used as a proof of identity verification, the act of presenting another person's driver's license when asked by a third person to present the ID card for the purpose of identity verification is an act in accordance with the main purpose of the license. Therefore, the majority opinion argues that it is correct to see that unlawful uttering of official document elements were satisfied and the previous judgments that are inconsistent with this opinion should be overruled.
However, this opinion can only be seen as a misunderstanding of the principles of unlawful uttering of official document elements, thus, I cannot agree.
The unlawful uttering of official document will occur only where the official document is for a specific use and the other person misuses that document for that specified use. Since the driver's license's specified use is to carry it while driving and provide it to the police when they request it rather than for an identity verification purpose, the act of providing another person's license for false identification purpose is not exercising the specified use of the driver's license. Therefore, such behavior does not constitute an unlawful uttering of official documents.
B. Under Article 230 of the Criminal Act, the elements for unlawful uttering of official document are stipulated as 'one who falsely presents as public service official or public documents or pictures.' The textual content of this stipulation does not ask whether or not all the official documents are included in the objective of the act or the authorized user's use of the document is specified. Additionally, in situations where the authorized user's use of the official document cannot be specified, it is even questionable if the false presentation rules even apply to such case. Therefore, if this is affirmed (if the rules apply to the previous situation), there is a dangerous possibility that the scope of punishment may drastically increase.
Regarding this point, the majority opinion seems to have the same opinion, the situations, where the crime's elements are too abstract, general, or the application of the crime's scope is too wide or comprehensive as to make it so indefinite in the view of an ordinary citizen with sufficient judgment capacity to make him wonder if such act is a prohibited act, are violation of criminal law principles.
Therefore, the previous and recent opinions by the Supreme Court limits the unlawful uttering of official document as an official document that specified its use and interpreted the behavior's form to mean its intended use according to its main purpose. (See Supreme Court Decision 74Do1695 delivered on September 4, 1974, Supreme Court Decision 81Do1130 delivered on December 8, 1981, Supreme Court Decision 82Do1985 delivered on June 28, 1983, Supreme Court Decision 93Do127 delivered on May 11, 1993, Supreme Court Decision 99Do206 delivered on May 14, 1999, etc.)
Since the official document includes the proof of the qualification of the specified person, personal information, and a personal picture in order for an official document to prove that the person who holds it is qualified for its use, the proof of personal identification is also imminent. But even though the official document for qualification purposes also serve an imminent role in proof of personal identification, it cannot be seen that the primary purpose of the qualification document is to prove one's identity.
However, according to Article 17-9 of the Resident Registration Act, a residence certificate is general proof of identification for people over the age of 17. And under Article 68 of the Road Traffic Act, a driver's license is an official document that proves that the person passed the driver's license test and is permitted to drive a vehicle and the primary purpose is specifically to present it to the police when they ask for a driver's presentation of it in order to prove that the person is permitted to drive. The possessor's identity confirmation is only a secondary role for the official document.
Just as pointed by the majority opinion, even though the driver's license is often used for identification purposes in actual transactions and some specified fields categorized by some statutes, such use is still merely a secondary role of the driver's license and cannot be the primary role.
The mere fact of its wide use for identification does not itself make it the main role. This situation also applies to official documents such as a passport, public service personnel card, employee card, student card. So if one takes the view that the mere fact that an official document for qualification is widely used for identification purposes is sufficient enough to show that its primary purpose is for identification, then the punishment scope due to the misbehavior will drastically increase. This situation, under the principles of criminal law, should be interpreted more narrowly and the punishment scope should be limited more reasonably, so the majority opinion should have carefully considered this unreasonable result.
Furthermore, this situation substantially contradicts the previous judgments. The purpose of the crimes regarding official documents is to protect the credibility of its substance and contents, so it is hard to see that the mere misuse of the official document is in violation of the rules regarding the documents. Furthermore, when such misuse violates other genre of rules, it can be punished according to the violation of the rule. For these reasons, there is no significant need to limitlessly punish the misuse of documents. In practice, Paragraph 2 of Article 21 of the Resident Registration Act regarding the person who presented another's driver's license, Paragraph 3 of Article 13 of the Passport Act regarding person who presented another's passport, Article 4 of the same Act regarding person who conveyed, lent, or offered a passport for the purpose of presentation and the person who received or borrowed the passport, all have separate punishments.
C. For the above reasons, I cannot agree with the majority opinion, and the judgments that the majority ruled should be changed have been of the opinion that the elements of unlawful uttering of official document should be limited more reasonably, and therefore they must be retained.
Chief Justice Choi Jong-young (Presiding Justice)
Justices Song Jin-hun
Suh Sung(Justice in charge)
Cho Moo-jeh
Yoo Ji-dam
Yoon Jae-sik
Lee Yong-woo
Bae Ki-won
Kang Shin-wook
Lee Kyu-hong
Lee Kang-kook
Son Ji-yol
Park Jae-yoon
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