[1] In a case where a check is issued by borrowing the name from a third party, whether the nominal borrower can be the subject of the crime of false report as provided by Article 4 of the Illegal Check Control Act (negative)

[2] In a crime of false accusation, the necessity of recognizing the falsity of the facts of accusation (affirmative), and in a case where the circumstances of accusation are somewhat exaggerated on the basis of the facts of accusation, whether the crime of false accusation is established (negative)

[1] Article 4 Section 4 of the Illegal Check Control Act requires "the purpose of avoiding a disposition of suspension of payment of the amount of a check or transaction". In light of the fact that the person liable for payment of the amount of a check or the person subject to a disposition of suspension of transaction is limited to the drawer, the person who is not an issuer can not be the subject of a crime of false declaration under Article 4 of the Illegal Check Control Act, and the person who is not an issuer shall not commit a crime of false declaration in the form of indirect offense by using an issuer who has no intent to make a false report. In case of issuing a check by borrowing the name from another person, the person whose amount of a check is paid or whose transaction is suspended shall be the name of the issuer of a check by presenting the check, and even if a check is presented, the person who is not the subject of the crime of false declaration under Article 4 of the Illegal Check Control Act.

[2] The crime of false accusation is established when a person reports false facts to a public office or a public official for the purpose of having a criminal or disciplinary punishment imposed upon another person. Here, the crime of false accusation is established when a person reports false facts to the public office or a public official. Here, the crime of false accusation is established when a person reports false facts to the effect that reported facts are contrary to objective facts, do not constitute a crime of false accusation, even if the reported facts are false facts contrary to objective facts, if there is no awareness of such falsity, and if the contents of a complaint are not false facts, but rather exaggerated facts based on facts, the crime

[1] Article 4 of the Illegal Check Control Act, Article 34 of the Criminal Act / [2] Article 156 of the Criminal Act

[1] Supreme Court Decision 92Do1342 delivered on November 10, 1992 (Gong1993Sang, 162) / [2] Supreme Court Decision 83Do2354 delivered on November 8, 1983 (Gong1984, 60) Supreme Court Decision 88Do99 delivered on September 27, 198 (Gong198, 1357), Supreme Court Decision 90Do1706 delivered on November 9, 1990 (Gong1991, 128), Supreme Court Decision 93Do2995 delivered on September 24, 1995 (Gong194, 748 delivered on September 24, 195), Supreme Court Decision 94Do3099 delivered on September 29, 196 (Gong94, 1969)

Defendant

Defendant and Prosecutor

Suwon District Court Decision 2001No4020 delivered on October 4, 2002

Of the convictions of the judgment of the court below, the part concerning the crime of false accusation No. 4. of the judgment of the court below is reversed, and that part of the case is remanded to Suwon District Court Panel Division. The remaining appeals by the defendant and prosecutor are all dismissed.

1. Judgment on the grounds of appeal by the prosecutor

Article 4 of the Illegal Check Control Act provides that "the purpose of avoiding the payment of the amount of a check or the suspension of transaction is to exempt the issuer". In light of the fact that the person liable for the payment of the amount of a check or the person subject to the suspension of transaction is limited to the issuer, the person who is not an issuer can not be the subject of the crime of false declaration under Article 4 of the Illegal Check Control Act, and the person who is not an issuer shall not commit the crime of false declaration in the form of indirect offense by using the issuer who has not intentionally reported (Supreme Court Decision 92Do1342 delivered on November 10, 192), and even in the case of issuing a check borrowed from another person, the person whose amount of a check is paid in the bank account by presenting the check, or whose transaction is suspended, shall be the issuer of the check, and even if the check is presented, the person cannot be regarded as the subject of the crime of false declaration under Article 4 of the Illegal Check Control Act.

In the same purport, the judgment of the court below that the defendant did not constitute a violation of Article 4 of the Illegal Check Control Act even if the defendant made a false report by using the Kim Jong-dae, the representative director of the Domin personal news who did not intend to make a false report, is just, and there is no violation of the legal principles as otherwise

2. Judgment on the Defendant’s grounds of appeal

A. As to the first ground for appeal

In light of the records, the judgment of the court of first instance which affirmed the charge that the defendant, in collusion with the non-indicted 2, who is the representative director of the non-indicted 1 corporation, issued a total amount of KRW 435,690,501 on the check in the name of the above company and did not receive the payment suspension due to the shortage of deposit or the non-payment suspension of payment, etc. is just and there is no illegality in violation of the

B. Regarding ground of appeal No. 2

The court below affirmed the judgment of the court of first instance that found the defendant guilty of the charge that the defendant, despite having no intention or ability to repay the money even if he borrowed the money, for the purpose of having the defendant take criminal punishment against the defendant in an Ansan prison, Kim Jong-tae, who was the defendant, borrowed the sum of KRW 60 million from the complainants on May 1, 1996 and on November 1 of the same year, and acquired it by fraud on two occasions from the complainants, and the defendant shall conspired in collusion on February 2, 1997, that the defendant borrowed KRW 40 million under the name of the money borrowed from the defendant."

However, 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 or disciplinary punishment imposed upon another person. Here, a false report refers to a conclusive or dolusent recognition that reported facts violate objective facts, and even if the reported facts are false in violation of objective facts, if there is no awareness of such falsity, it shall be deemed that there is no intention for false accusation. If the contents of a false accusation are not false facts, but rather are somewhat exaggerated in the circumstances based on facts, it shall not be established (see Supreme Court Decision 98Do1949 delivered on September 8, 1998, etc.).

According to the records, the contents of the Defendant’s complaint against Nonindicted Party 2 and the Defendant’s Kim Il-so and the Defendant’s complaint against Nonindicted Party 2 were as follows: “On May 1996, the Defendant lent KRW 30 million to the Defendant’s lele, the president of the Self-Friendly Industry (the head of the) upon receipt of the Kim Jong-so’s request, and around November 1996, at a discounted rate of KRW 30 million by receiving the per share table in relation to the relocation of the Kim Tae-tae’s factory, and at a discounted rate of KRW 40 million from the security deposit for death. However, the Defendant was unable to receive KRW 40 million from Kim Tae-tae and Nonindicted Party 2’s establishment of Nonindicted Company 3 to transfer the machinery, equipment and dives, which are the assets of Nonindicted Party 1, to Nonindicted Party 2.”

In light of the fact that around May 196, the defendant lent KRW 30 million to the non-indicted corporation 4 (the non-indicted corporation 3's loan of KRW 18.5 million) on the non-indicted 8's loan of KRW 18.5 million on the non-indicted 8's loan of KRW 00,000,000 on the non-indicted 8's loan of KRW 30,000,00,000 from the non-indicted 1's representative director, although the defendant was in the position of the chairperson of the non-indicted 8's loan of KRW 18.5 million on the non-indicted 3's loan of KRW 8's loan of KRW 0,00,000 on the non-indicted 1's loan of KRW 30,000,000,000 on the non-indicted 3's loan of KRW 10,000,000 from the non-indicted corporation's loan of KRW 10,00,0,000.

In full view of the above circumstances, the amount of money claimed by the defendant to be lent to Kim So-young and Nonindicted Party 2 in the complaint book is ambiguous, and it is somewhat unclear whether the monetary lending relationship between the defendant and Nonindicted Party 2 can be established within the legal meaning. However, the above contents of the complaint filed by the defendant are not any false facts, but only a little exaggeration about the circumstance based on the facts, and it is difficult to see that the defendant is aware of the falsity.

Nevertheless, the judgment of the court below which found the above facts charged guilty is erroneous in the misunderstanding of legal principles as to the crime of false accusation or in the misunderstanding of facts against the rules of evidence, which affected the conclusion of the judgment. Therefore, the grounds of appeal as to

C. Regarding ground of appeal No. 3

In light of the records, the judgment of the court below that there is no evidence to see him as the last holder of the check, such as Park Jong-hee, Kim Yong-dae, Kim Jong-dae, etc. who submitted the written application for a non-prosecution of punishment, is just and there is no illegality

3. Conclusion

Therefore, among the guilty parts of the judgment of the court below, the part concerning the crime of false accusation No. 4. of the judgment of the court below shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. The remaining appeal by the defendant and the appeal by the prosecutor shall be dismissed in its entirety as it is without merit.

Justices Song Jin-hun (Presiding Justice)