Whether a crime without accusation is established in a case where the fact that a false report was made does not constitute a criminal offense at the time of reporting (negative), and in a case where the Supreme Court changed the case where the fact that a false report was made could be subject to criminal punishment at the time of an act without accusation, but that was not a criminal offense thereafter, whether it affects the crime without accusation already established (negative in principle)

When any other person reports false facts to a public office or a public official for the purpose of having a criminal or disciplinary punishment imposed upon him/her (Article 156 of the Criminal Act). The crime of false accusation is established (Article 156 of the Criminal Act). The benefit of an individual is also protected, but the appropriate exercise of the State’s criminal justice or disciplinary right is the principal legal interest.

In order to constitute a false criminal offense with the intent to have another person punished, the reported fact itself can be the subject of criminal punishment. Thus, even if a false fact was reported, the fact itself does not constitute a criminal offense unless the reported fact itself is constituted at the time of the report. However, in a case where a false fact was reported, which could have been the subject of criminal punishment at the time of the act of false accusation, the risk of infringing the appropriate exercise of the State’s criminal justice authority and the legal stability of an individual who would not be unfairly punished has already occurred, and thus, the crime of false accusation has been committed, and even if there was a change in the precedent that did not constitute a criminal offense, it does not affect the existing crime of false accusation, unless there are special circumstances.

Article 156 of the Criminal Act

Supreme Court Decision 2005Do2712 Decided September 30, 2005 (Gong2005Ha, 1753) Supreme Court Decision 2006Do558 Decided April 13, 2007 (Gong2007Sang, 747) Supreme Court Decision 2013Do6862 Decided September 26, 2013

Defendant

Defendant

Attorney Lee Jin-jin

Busan District Court Decision 2015No1910 decided September 11, 2015

The appeal is dismissed.

The grounds of appeal are examined.

1. 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 him/her (Article 156 of the Criminal Act). The crime of false accusation also protects the benefit of an individual not being subject to punishment or disciplinary punishment. However, the appropriate exercise of the State’s criminal justice or disciplinary right is the principal legal interest (see Supreme Court Decision 2005Do2712, Sept. 30, 2005, etc.).

In order to constitute a false criminal offense with the intent to have another person sentenced to criminal punishment, the reported fact itself can be the subject of criminal punishment. Thus, even if a false fact was reported, the fact itself does not constitute a criminal offense unless it constitutes a criminal offense (see Supreme Court Decision 2006Do558, Apr. 13, 2007, etc.). However, in cases where a false fact reported could have become the subject of criminal punishment at the time of the act of false accusation, the crime of false accusation has already been committed as well as the risk of infringing the legal stability of an individual who would not be unfairly punished, and thus, the crime of false accusation is committed, and even if the precedent was changed that such a fact did not constitute a criminal offense, it does not affect the already established crime of false accusation, barring any special circumstances.

2. A. For the following reasons, the lower court convicted the Defendant of the instant charges on the grounds that the Defendant’s accusation constitutes false facts and the Defendant was also aware of such circumstances, and that the fact reported by the Defendant at the time of the act of false accusation could have become the cause of criminal punishment.

(1) On January 9, 2014, the Defendant was a director of Nonindicted Company 1 (hereinafter “Nonindicted Company 1”). On the part of the Busan District Public Prosecutor’s Office, Nonindicted Company 3, who was the representative of Nonindicted Company 2 (hereinafter “Nonindicted Company 2”), submitted a written complaint stating that “On September 2, 2009, the Defendant was selling ○○○○○○ (No. 1 omitted) and (No. 2 omitted) from Nonindicted Party 3, the Defendant, but, on the part of Nonindicted Party 3, who was the Defendant, sold in lots to others, Nonindicted Party 3, who was the Defendant, was punished for double sale.” On February 6, 2014, at the Busan Public Prosecutor’s Office’s office and office, the Defendant, “On September 30, 201, ○○○○○○ (No. 1500,000 won, which was executed by Nonindicted Company 1, who was awarded a contract from Nonindicted Company 2, sold the same to Nonindicted Party 300.

(2) The Defendant asserted that Nonindicted 3 and Nonindicted 3 agreed on the construction cost of the instant construction amounting to KRW 90 million, and that Nonindicted 3 did not pay it, instead of paying it, the Defendant did not submit objective data on the content and process rate of the construction performed by himself/herself, and the amount of money that he/she has contributed thereto. Rather, the Defendant’s construction work did not exceed KRW 6.5 million due to a certain paint work and pent work, and the Defendant appears to have settled all of his/her credit and debt relationships between 2,00,000 won and 6.5 million won.

(3) Prior to the instant complaint, the Defendant filed a complaint against Nonindicted 3 on suspicion of fraud regarding the instant construction work, but Nonindicted 3 was acquitted on the grounds that the construction amount to be received by the Defendant in the appellate trial on December 24, 2009 was merely KRW 6.5 million, unlike the assertion in the investigative agency (50 million) (the Busan District Court Decision 2009No1085), and the said judgment was dismissed and finalized by the Supreme Court on April 29, 2010 (Supreme Court Decision 2010Do482).

(4) According to the Defendant’s accusation, Nonindicted 3 was investigated by the prosecution as a suspect on the above accusation.

(5) The Supreme Court precedents at the time of the instant complaint and investigation deemed that “in the event an obligor, who entered into a promise for payment in substitution for a real estate as collateral, disposes of the real estate, the crime of breach of trust is established” (see, e.g., Supreme Court en banc Decision 2000Do4293, Dec. 8, 2000). However, the Supreme Court changed the en banc Decision that rendered on August 21, 2014 and changed the en banc Decision, thereby not establishing the crime of breach of trust in the above case ( Supreme Court en banc Decision 2014Do33

B. The lower court’s determination is justifiable in light of the foregoing legal doctrine. In so determining, the lower court did not err by misapprehending the legal doctrine on the crime of false accusation, contrary to what is alleged in

3. Conclusion

The Defendant’s appeal is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)