[무고][공2007.5.15.(274),747]
[1] In a case where a false fact reported does not constitute a criminal offense, the nature of the crime without accusation (negative)
[2] The case holding that a false accusation cannot be established even if the content of the report is false, since it is merely a report on the fact of accusation that "the defendant suffered losses by double transfer of the right to collect objection," which does not constitute a crime of embezzlement, a crime of breach of trust, or a crime of criminal punishment
[1] The reported fact itself, in order to constitute a false crime for the purpose of having another person punished by penal punishment, should be able to constitute a false crime. Thus, even if a false report was made on a false fact, if the fact itself does not constitute a criminal offense, the crime of false accusation is not established.
[2] The case holding that a false accusation cannot be established even if the content of the report is false, since it is merely a report on the fact of accusation that "the defendant suffered losses by double transfer of the right to collect objection," which does not constitute a crime of embezzlement, a crime of breach of trust, or a crime of criminal punishment
[1] Article 156 of the Criminal Act / [2] Article 156 of the Criminal Act
[1] Supreme Court Decision 92Do1799 delivered on October 13, 1992 (Gong1992, 3193) Supreme Court Decision 2002Do3738 delivered on November 8, 2002 (Gong2003Sang, 107)
Defendant
Prosecutor
Daegu District Court Decision 2005No2893 Decided December 28, 2005
The appeal is dismissed.
The grounds of appeal are examined.
For the purpose of having another person punished by penal punishment, the reported fact itself, which is in order to constitute a false crime, must be a ground for criminal punishment. Even if a false report was made on a false fact, if the fact itself does not constitute a criminal offense, the crime of false accusation is not established (see Supreme Court Decisions 92Do1799, Oct. 13, 1992; 2002Do3738, Nov. 8, 2002, etc.).
However, examining the contents of the written complaint of this case bound in the investigation records, the purport of the complaint of this case is as follows: "On November 3, 1998, Non-Indicted 1, who is the defendant, cultivated and managed the answer of this case owned by Non-Indicted 1 for 10 years from 1999 to 2008, and collected the answer of this case, and entered into a land cultivation and management contract with Non-Indicted 1, which stipulates that the defendant shall pay the consideration to Non-Indicted 1. Non-Indicted 2 and 3; on July 2002, Non-Indicted 1 suffered losses from Non-Indicted 1 because the right to collect the answer of this case born in the forest of this case was double transferred to Non-Indicted 2 and 3, thereby causing losses to the defendant; therefore, the crime of embezzlement cannot be deemed as having been established since the defendant's accusation of this case did not interfere with the defendant's criminal obligation to collect the same from the forest of this case since it did not constitute a criminal obligation of non-Indicted 1, even if it was transferred to the defendant.
In the same purport, the court below is just to find the defendant not guilty of this part of the facts charged, and there is no error of law such as misunderstanding of legal principles as to the elements for establishment
Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Nung-hwan (Presiding Justice)