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(영문) 서울북부지방법원 2009. 12. 30. 선고 2008고정2829 판결

[무고][미간행]

Escopics

Defendant

Prosecutor

Freeboard Kim

Defense Counsel

A new attorney-at-law (Korean National Assembly)

Text

Defendant shall be punished by a fine of KRW 3,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for a period calculated by converting 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

Criminal facts

The Defendant was a person who worked as a secretary in the “law firm ○○” operated by the victim Nonindicted 1 attorney-at-law in Yangcheon-gu Seoul Metropolitan Government (hereinafter omitted).

On November 207, the Defendant drafted a false statement on the contents of the petition using a computer for the purpose of having the above non-indicted 1 take disciplinary action against him. The petition is that “The non-indicted 1 attorney, who was confined to the Yeongdeungpo-gu Hospital on April 2006, agreed to receive 300 million won on the condition that he will act with outside persons instead of any contact relationship with the outside persons, etc., and would normally select and appoint the case of non-indicted 2 at least two times a week after submitting the two and three weeks of resignation and submitting the two and three weeks of resignation each week, with the attorney at the office where the name of the above non-indicted 1 cannot be known.” The content of the petition is that “The non-indicted 1 attorney, who was confined to the Yeongdeungpo-gu Hospital on April 2006, agreed to receive 300 million won on the condition that he will not act with outside persons, etc., and violated his duty to maintain dignity.” The contents of contact with the non-indicted 21 and the above non-indicted 21 are not subject to contact.”

Nevertheless, around November 2007, the Defendant sent and received one copy of the written petition to the Seoul Local Bar Association Association located in Seocho-gu Seoul, Seocho-gu, Seoul, as an addressee by mail, and made the head of the Seoul Local Bar Association dispatch and receive it by mail. Accordingly, the Defendant did not dismiss Nonindicted Party 1.

Summary of Evidence

1. Statement by the defendant in court;

1. The legal statement of the witness non-indicted 1

Application of Statutes

1. Article applicable to criminal facts;

Article 156 (Punishment of Fine)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judgment on Defendant’s argument

The defendant asserts that since the Seoul Local Bar Association does not correspond to public offices prescribed by the offense of false accusation, the true disciplinary action of lawyers to the Seoul Local Bar Association does not constitute an offense of false accusation.

The term "public offices or public officials" as provided in Article 156 of the Criminal Act means agencies or members entitled to urge the exercise of disciplinary authority in cases of disciplinary action, and disciplinary action means sanctions imposed on a supervisor for the maintenance of order in the course of performing his/her duties in accordance with the Acts and subordinate statutes based on the supervisory relationship under public law. It is not limited to formal administrative action and it is not necessary for public officials. In addition, when the head of a local bar association discovers that there are disciplinary reasons under Article 91 of the Attorney-at-Law Act, he/she shall apply to the President of the Korean Bar Association for the commencement of disciplinary action against an attorney-at-law (Article 97-2(2)), disciplinary action shall be conducted by the Korean Bar Association and the Ministry of Justice, respectively (Article 92), and the Disciplinary Committee of the Korean Bar Association and the Ministry of Justice shall deliberate on a case of objection against the decision of disciplinary action by the Korean Bar Association Disciplinary Committee (Article 96), and the head of the Korean Bar Association has the authority to execute disciplinary action (Article 98-5(1) and report the decision of the Korean Bar Association without delay).

In light of the above legal principles and the provisions of the Attorney-at-Law Act, it is reasonable to view that the head of the Seoul Local Bar Association constitutes a "public office," an agency having the right to discipline or disciplinary action against an attorney-at-law.

Therefore, the defendant's assertion is without merit.

Judges Park Bo-uri