A defendant shall be punished by imprisonment for six months.

However, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

The defendant shall be ordered to provide community service for 180 hours.

Even if the fact that the defendant filed a complaint is false, the fact itself does not constitute a crime, and thus, the court below found the defendant not guilty of the facts charged in this case, and erred by mistake of facts or by misapprehending of legal principles.

2. Determination

A. Summary of the facts charged

Since Nonindicted Co. 1 and Nonindicted Co. 4 (hereinafter “Nonindicted Co. 1”) on January 18, 207, when the Defendant was a director, entered into a contract as a joint contractor for the interior finishing work of ○○○○○○ Construction Co., Ltd. (hereinafter “instant construction contract”), which was enforced by Nonindicted Co. 3 on May 18, 2007 by the representative of Nonindicted Co. 2, the Plaintiff, as the director, entered into a joint contractor for the inner finishing work of ○○○○○○○ Construction Co., Ltd. (hereinafter “instant construction contract”). Nonindicted Co. 2, Ltd., set up a collective security right amounting to KRW 2.5 billion for the purpose of securing the construction cost of “Nonindicted Co. 1, etc.” (hereinafter “Nonindicted Co. 1, etc.”) and, at the same time, the Defendant, who was not a non-indicted Co. 2 and Nonindicted Co. 1’s creditors, did not have the effect of making out the above sales contract number of KRW 300,000.

Notwithstanding the fact that the Defendant did not claim construction price against Nonindicted 3, and the creditors of Nonindicted Co. 1 received the sales contract from Nonindicted Co. 3 in return for the release of the attachment of the right to collateral security, the Defendant could not claim the right to sell the real estate because he did not comply with the promise. However, on January 9, 2014, the Busan District Public Prosecutor’s Office in the Busan Public Prosecutor’s Office located in the Busan Public Prosecutor’s Office (hereinafter referred to as the Busan Public Prosecutor’s Office) submitted a complaint to the effect that “In spite of the sale of ○○○○ (No. 2 omitted) and (No. 1 omitted), the Defendant, who was the Defendant, sold it to others on September 2, 2009, there was a request for punishment for double sale by Nonindicted Co. 3, who was the Defendant, at the Busan Public Prosecutor’s Office’s office and office on February 6, 2014; and, on September 3, 2014, Nonindicted Co. 1 sold the construction payment to Nonindicted Co. 300 million won.

The Defendant reported false facts to a public official for the purpose of having another person receive criminal punishment as above, and the above Nonindicted 3 was dismissed.

B. The judgment of the court below

(1) Relevant legal principles

In order to constitute a false fact-finding crime for the purpose of having another person punished, the reported fact itself should be able to constitute a criminal punishment. Even if a false fact-finding report was made, if the fact itself does not constitute a criminal offense, then the crime of false accusation is not established (see Supreme Court Decision 2006Do558, Apr. 13, 2007, etc.).

In principle, an obligor’s obligation to perform the ownership of real estate in accordance with the terms and conditions of the agreement constitutes “one’s own business” unless there are special circumstances. In short, an obligor’s obligation to transfer ownership of real estate in accordance with the pre-payment agreement is not conclusive at the time of the pre-payment, but is only problematic after the obligee exercises the right of full payment. An obligor is able to extinguish the obligation to perform the registration of ownership transfer of the real estate by paying monetary obligations to the obligor even after the exercise of the right of full payment. Meanwhile, an obligee is interested in assessing the value of the real estate as a collateral rather than a specific property itself and paying the existing monetary claim to the obligee. In short, an obligee is practically able to achieve the ultimate purpose of the pre-payment agreement by receiving monetary compensation from the obligor, and thus, the obligor’s obligation to transfer the ownership of the real estate in accordance with the pre-payment agreement is not an obligor’s obligation to perform the obligation to transfer the ownership of the real estate in accord with the third party’s obligation to perform the obligation in accord with the third party’s trust.

(2) Specific determination

(A) Details of the defendant's complaint

On February 6, 2014, according to the criminal complaint submitted by the defendant and the prosecutor's office in Busan District Prosecutors' Office and the statement of supplement to the details of the criminal complaint made by the defendant, the contents of the criminal complaint against Nonindicted 3 are as follows: "The contents of the criminal complaint against Nonindicted 3 are as follows: (a) on September 1, 2009, upon the agreement with Nonindicted 3 on the payment of the construction price by September 30, 2009 for the completion of the internal finishing construction work at ○○○○○○○○○○○○○○○○○○○○○○, which was made by the non-indicted 1 company; and (b) on September 30, 2009, if the payment is not made up until then, it was sold in lots to ○○○○○○○○○○○○; and (c) on January

(B) In light of the above legal principles, even if the defendant's complaint is based on the content itself, the sales contract concluded with the non-indicted 3 constitutes an accord for payment in kind under the Civil Act. In light of the above legal principles, even if the non-indicted 3 disposed of it (which is not actually disposed of by the non-indicted 3, but which was awarded to another person through the auction procedure that was already under way at the time of the conclusion of the sales contract in this case, it is clear that

Therefore, even if the defendant's complaint against non-indicted 3 filed a false report on the developments leading up to the conclusion of the sales contract and the scope of the unpaid construction cost, such a false report does not constitute a criminal offense, unless the fact itself constitutes a criminal offense.

C. Judgment of the court below

(1) The first issue of this case is whether the determination on “whether the reported fact itself can be the cause of criminal punishment” in the establishment of the crime of false accusation should be based on the time of false accusation, or whether the changed circumstances thereafter should also be considered.

The crime of false accusation is established without asking whether the act of false accusation has been effective or not, as it is not a crime of infringement, since it is a dangerous crime, not a crime of violation. The crime of false accusation is established without asking whether the act of false accusation has been effective or not. The crime of false accusation is established when a report reaches a public office or a public official, there is no penal provision for attempted crimes. Even if the reported fact is false, if the reported fact constitutes a crime of crime, the crime of false accusation is not established if it is added or its purpose is obvious by the contents of the report itself. The crime of false accusation is not established. Considering that the crime of false accusation is a crime of protecting the proper exercise of the State's criminal justice rights or disciplinary rights, but an individual's benefits which are not unfairly punished or disciplinary measures are also incidentally protected (see Supreme Court Decision 2005Do2712, Sept. 30, 2005). In this case, if the reported fact could have caused criminal punishment, it can be viewed that there was an infringement of the interest of an individual without criminal punishment or disciplinary punishment.

(2) Furthermore, examining whether the facts charged by the Defendant were false or not, comprehensively taking account of the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court, the above contents of the Defendant’s complaint (as stated in subparagraph (b)(2) constituted false facts, and the Defendant also knew of such circumstances, so it can be sufficiently recognized that the Defendant was unaware of Nonindicted 3.

① The Defendant asserted that he would purchase the instant apartment in lieu of Nonindicted 3’s failure to pay the construction price of KRW 90 million under the instant construction contract with Nonindicted 3. However, the Defendant did not submit objective data on the content and progress rate of the construction work performed by the Defendant from the investigative agency to the trial. Rather, according to the records of the instant case, it is difficult to accept the Defendant’s assertion on the following grounds: (a) the construction price is equivalent to KRW 6,500,000; (b) the Defendant received from Nonindicted 3 all the above KRW 6,50,00 from Nonindicted 3 and settled all the claims and debt relationships among two parties.

② In relation to the instant construction contract, even in the case where the Defendant filed a complaint against Nonindicted 3 on the charge of fraud (the Busan District Court’s Branch Branch Decision 2008Kadan6955, the Busan District Court Decision 2009No1085, and Supreme Court Decision 2010Do482, Dec. 24, 2009, the appellate court acquitted Nonindicted 3 on the purport that the amount of the construction cost the Defendant performed is only 6.5 million won, unlike the assertion in the investigation agency (the amount of KRW 50 million). The above judgment was dismissed and finalized by the Supreme Court on April 29, 2010, and the Defendant’s non-appeal was conducted on January 9, 2014, where approximately four years elapsed since the Defendant’s non-appeal.

③ On the other hand, Nonindicted 3’s statement on the process of the formation of the instant sales contract, i.e., the Defendant and Nonindicted 3’s statement that concluded the instant construction contract and set up a collateral on the part of ○○○○○○○○○○○○ in order to secure the construction cost (total of 2.5 billion won), but the Defendant’s creditors made and delivered the instant sales contract for the purpose of securing the expenses for the Defendant’s statement that the Defendant’s creditors need to attach and cancel the collateral, is considerably reliable in light of the letter of undertaking (Evidence No. 153) written between the Defendant and

(3) Therefore, the judgment of the court below which acquitted the defendant is erroneous in the misapprehension of legal principles and the prosecutor's above assertion is justified.

3. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

1. Statements made to the accused prepared by the public prosecutor concerning the interrogation of the suspect and some statements fit therefor;

1. Each description of a complaint, investigative report (to be accompanied by data submitted by the defendant's domicile, such as a full certificate of registered matters), each letter of certification, each judgment, each contract for construction works, letter of undertaking, and copy of a receipt;

Article 156 of the Criminal Code, Selection of Imprisonment

1. Suspension of execution;

Article 62(1) of the Criminal Act

1. Social service order;

Article 62-2 of the Criminal Act

Type 1 (General Appeal) > Basic Area (6-2 years from June to February)

【Special Convicted Persons】

None

【Determination of Sentence】

It is recognized that the crime of false accusation is not only giving the risk and suffering of criminal punishment to the accused, but also that there is a need to be strict as a crime interfering with the realization of justice through the judicial authority by abusing the judicial functions of the State, and Nonindicted 3 suffers from criminal investigation for a considerable period of time due to the Defendant’s act of false accusation, and further, even if Nonindicted 3 had been acquitted prior to Nonindicted 3, the Defendant had filed a criminal complaint for the crime of fraud, and even if Nonindicted 3 was acquitted in the trial, the Defendant again filed a criminal complaint after about four years, and the nature of the crime is not good. The Defendant denied all the crimes since the investigative agency to the trial, and did not violate the law while denying all the crimes.

However, considering the fact that the defendant did not have the same criminal record, the fact that Nonindicted 3 did not proceed to the stage of criminal prosecution, etc., the defendant's age, environment, occupation, occupation, family relationship, circumstances leading to the crime of this case, and circumstances leading to the crime of this case, etc., the punishment as set forth in the disposition shall be determined as per Disposition, by taking into account all the circumstances that led to

Judges Kim Jong-hee (Presiding Judge)