[2] In a case where Gap who did not repay money to the defendant filed a complaint for the fraud of the borrowed money, and concealed the fact that he lent money to the "money for gambling" as to the purpose of the loan, and falsely stated the "funds necessary for purchasing the loan", and charged with the act of free payment by stating the date and time and place of the loan differently from the fact, the case holding that the judgment below which convicted the defendant was erroneous in the misapprehension of legal principles

[2] In a case where Gap, who did not repay money, filed a complaint by borrowing money, and the defendant concealed the fact that he borrowed money as "money necessary for the purchase of loan money" and falsely stated the time and place of loan as "money necessary for the purchase of loan" and entered it differently from the fact and prosecuted Gap, the case held that the court below erred in the misapprehension of legal principles as to the crime of fraud, although the defendant alleged that Gap acquired money under the name of borrowed money without the intent and ability to repay and there is no assertion that Gap borrowed money under the pretext of fraud; and the investigative agency can investigate whether Gap borrowed money without the intent or ability to repay money, regardless of the purpose of loan money; although the defendant concealed the fact that he borrowed money with gambling money, it is hard to see that the defendant reported the important part of the crime of fraud to the extent that it affects the establishment of fraud merely because it stated differently from the fact as to matters not related to the intention or ability to repay such as the date and place of loan, etc.

The crime of false accusation is established when another person reports false facts to a public office or a public official for the purpose of having a criminal punishment or disciplinary punishment. Even if a part of the reported facts is false, it does not constitute a crime of false accusation if the reported facts are merely exaggerated (see, e.g., Supreme Court Decisions 96Do771, May 31, 1996; 2002Do5939, Jan. 24, 2003). However, when a person who borrowed money files a complaint against a lender who does not repay borrowed money in fraud, he/she did not lend money if he/she stated the purpose of the borrowed money. It would affect whether the actual purpose of the borrowed money was established or not, and thus, if the complainant files a false report on the actual purpose of the borrowed money, it does not constitute a crime of false accusation, regardless of the ability of the reported intent to do so. However, it cannot be viewed that it constitutes a crime of false accusation.

The summary of the facts charged of this case is that the defendant lent money to the non-indicted person who is the defendant's lawsuit for gambling at around November 2006 at the ○○○○○○○ 401 located in the new-gu Seoul Special Metropolitan City, Seoul Special Metropolitan City, but around February 7, 2007, the defendant submitted a written complaint to the public service center of the Seocheon-gu Seoul Special Metropolitan City Seoul Special Metropolitan City police station on around February 7, 2007 that "the non-indicted person who is the defendant's lawsuit did not have any intent or ability to repay the borrowed money and borrowed money, and then borrowed KRW 5 million from ○○○○ 401,000,000,000,000,000 won to purchase dumping goods."

According to the reasoning of the judgment below, the court below found the defendant guilty of the facts charged in this case on the ground that the fact that the defendant lent 5 million won to the non-indicted in gambling at around November 20, 2006, to the non-indicted in the form of gambling money, and that he borrowed 5 million won to the non-indicted in the form of gambling money, as if he lent money to the non-indicted in the form of gambling money, the purpose of the loan, the date, time, and place of lending was false as if he lent money to the non-indicted in the form of gambling fund.

However, according to the records, the defendant's complaint in this case is punished for fraud because the defendant's complainant obtained money as the borrowed money without the intention and ability to repay, and it is not alleged that the defendant did not lend the money if he had talked about the purpose of the borrowed money. However, there is no fact that the defendant lent the money to the wind, which belongs to the purpose of the borrowed money.

Therefore, in light of the above contents of the complaint, the investigative agency can investigate whether the defendant borrowed money without the intent or ability to repay the money, regardless of the purpose of the loan. Thus, even though the defendant concealed the fact that he borrowed money with gambling, the defendant stated it falsely in the complaint about the purpose of the loan, and stated differently as the facts charged about matters that are not related to the intention or ability to repay, such as the date and time, place, etc. of the loan, it is difficult to view that the defendant reported falsely an important part to the extent that it affects the establishment of the crime of fraud.

Nevertheless, the lower court erred by misapprehending the legal doctrine on the crime of false accusation, thereby adversely affecting the conclusion of the judgment, solely on the grounds stated in its reasoning.

The ground of appeal pointing this out is with merit.

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 on the bench.

Justices Yang Chang-soo (Presiding Justice)