1. The facts charged and the judgment of the court below

Of the facts charged in this case, the court below found the defendant guilty on May 8, 198, the non-indicted 2 and the non-indicted 1 and the non-indicted 2, who were in a relationship with the non-indicted 2 on the lease contract, again prepared a lease contract with the non-indicted 1 and the non-indicted 2 on May 18, 1998 with the non-indicted 1 and the non-indicted 2 on the ground that the non-indicted 1 and the non-indicted 2 had the non-indicted 1 and the non-indicted 2, who were in a relationship with the non-indicted 1 and the non-indicted 2, prepared a new lease contract with the non-indicted 2 on the condition that the non-indicted 1 and the non-indicted 2, who were in a relationship with the non-indicted 2, operated the above multi-party 1,000 won on the 18th day of the same month and prepared a false report to the non-indicted 1 and the defendant fraudulently accepted the lease deposit in the non-indicted 18.

2. Judgment of the Supreme Court

However, it is difficult to accept the judgment of the court below for the following reasons.

In order for another person to constitute a false fact with the intention of having a criminal punishment, the reported fact itself should be the cause of criminal punishment, and if the fact itself does not constitute a criminal offense, even if the reported fact itself constitutes a false fact, the crime of false accusation is not established (see Supreme Court Decision 92Do1799 delivered on October 13, 192, etc.).

However, considering the part related to the above facts charged among the written complaint prepared by the defendant, which was bound in the investigation record, on May 8, 1998, the complainant acquired approximately KRW 25 million from Nonindicted 1 on the second floor of the building located in Seocho-gu Seoul, Seocho-gu, Seoul, as the lease deposit amount of KRW 10 million, monthly rent of KRW 700,000, and the lease period of May 10, 1998, and entrusted the multiple operation to Nonindicted 2. On May 18, 1998, Nonindicted 1 conspired with Nonindicted 2, in collusion with Nonindicted 1, a lessee on May 18, 1998, after preparing a lease contract with Nonindicted 2, and removing the complainant, by taking the lease deposit of KRW 10 million and KRW 18 million,000,000,000,000,000,00 won, as the time of the crime of breach of trust or fraud.

If the facts alleged above are the same, it should be deemed that the crime of forging private documents does not constitute a criminal offense. This is because, first of all, the crime of forging private documents refers to the preparation by a person who is not authorized to prepare a document under the name of another. The so-called intangible forgery, which is to prepare a document contrary to the truth, is not subject to punishment. Therefore, even if Nonindicted 2 and Nonindicted 1 newly prepares a lease agreement under their name without the consent of the defendant, such as the fact of domestic complaint, there is no room to establish the crime of forging private documents because it does not constitute a case where the non-indicted 2 and the non-indicted 1 prepare a document under their name without the consent of the defendant. Furthermore, in a lease agreement with security deposit, the lessor is not obligated to use and benefit from the object and if the lease contract is terminated, it is not clear that the lessee was unaware of the third party’s obligation to liquidate the lessee’s obligation until the time of default, and it is not in the position of keeping the lease deposit or handling the affairs of the lessee.

Therefore, even if the defendant reported false facts as if he did not consent despite the defendant's consent to the preparation of the lease agreement between the non-indicted 2 and the non-indicted 1 on May 18, 1998, such accusation itself constitutes a crime of false accusation unless it consists of forgery of private documents, embezzlement, embezzlement, fraud, or other criminal crimes.

Nevertheless, on May 18, 1998, the court below maintained the first instance court which convicted the defendant on the ground that the defendant requested the non-indicted 1 to prepare a new lease contract with the name of the lessee as non-indicted 2, and the written contract with the non-indicted 2 was established. This is erroneous in the misapprehension of legal principles as to the crime of false accusation or failure to exhaust all necessary deliberations, which affected the conclusion of the judgment. Thus, the ground of appeal containing the purport of pointing this out is justified.

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Cho-Un (Presiding Justice)