[1] The degree of indication of false facts in the crime of false accusation

[2] Whether the crime of false accusation can be established by readily concluding that the reported fact is false in contravention of objective truth only with the passive proof that the authenticity of the reported fact cannot be recognized (negative)

[3] The intent of the crime of false accusation

[4] The meaning of "for the purpose of criminal or disciplinary punishment" in a false accusation

[5] The meaning of false facts in the crime of publishing false facts under Article 250 (2) of the Public Official Election and Prevention of Election Illegal Act

[6] The burden of proving and proving the falsity of the publication in the crime of publishing false facts under Article 250 (2) of the Public Official Election and Prevention of Election Illegal Act

[7] The meaning of "the purpose of preventing a party from being elected" in the crime of publishing false facts under Article 250 (2) of the Public Official Election and Prevention of Election Illegal Act

[1] The degree of expression of false facts in the crime of false accusation is sufficient if it is sufficient to urge the investigative agency or the supervisory agency to exercise the authority to investigate or take disciplinary action, and it does not necessarily have to specify the facts of the constituent elements of the crime or the facts of the disciplinary action.

[2] The crime of false accusation is established when the reported fact goes against the objective truth with the intention of having another person subject to criminal punishment or disciplinary disposition, and the requirement that the reported fact goes against the objective fact requires positive proof. The mere passive proof that the authenticity of the reported fact cannot be recognized is a false fact contrary to the objective truth, and the establishment of the crime of false accusation cannot be acknowledged.

[3] The criminal intent in the crime of false accusation is not necessarily required to be a conclusive intentional act, and it is also sufficient to dolusent intent. Therefore, the crime of false accusation is established by reporting the fact that the reporting person is not true, and it does not require conviction that the reported fact is false.

[4] In the crime of false accusation, "the purpose of a criminal or disciplinary measure" is to make a false report, if there is a perception that another person would be subject to criminal or disciplinary measure due to him/her, and it does not require that the result would have occurred. Thus, as long as the defendant submitted a written complaint to an investigation agency, such recognition has been recognized.

[5] In order to establish a crime of publishing false facts under Article 250(2) of the Public Official Election Act (amended by Act No. 7681 of Aug. 4, 2005), the crime of publishing false facts should first be published. Here, the crime of publishing false facts is sufficient if it is sufficient to allow the elector to make an accurate judgment on the candidate, but it does not constitute merely an expression of opinion with simple value judgment or evaluation.

[6] In order to establish the crime of publishing false facts under Article 250 (2) of the Public Official Election Act (amended by the Public Official Election Act, Law No. 7681 of August 4, 2005), the public prosecutor's disclosure of false facts is necessary to actively prove that the public prosecutor is false. The crime of publishing false facts cannot be established on the sole basis of the fact that the public disclosure is true. However, the person who actively asserts that there is no suspicion against anyone who asserts that there was no suspicion in the crime of publishing false facts is a burden of presenting such facts. On the other hand, the public prosecutor can prove false facts by impeachmenting the credibility of the materials presented. In light of the above legal principles, the materials to be presented at this time are insufficient to present simple arguments, and at least that the public prosecutor's activities to prove false facts are sufficient to the extent that it is possible, and if there is no presentation of such materials or impeachment of the credibility of the materials presented, the public prosecutor's disclosure of false facts must be held liable for such false facts.

[7] In the crime of publishing false facts under Article 250 (2) of the Public Official Election Act (amended by Act No. 7681 of Aug. 4, 2005), the term "purposes to prevent a candidate from being elected" is sufficient when the public announcement of false facts makes it possible for the candidate to be unable to be elected, and it does not require that the result actively is intended or desired.

[1] Article 156 of the Criminal Act / [2] Article 156 of the Criminal Act / [3] Article 156 of the Criminal Act / [4] Article 156 of the Criminal Act / [5] Article 250 (2) of the Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7681 of Aug. 4, 2005) / [6] Article 250 (2) of the Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7681 of Aug. 4, 2005) / [7] Article 250 (2) of the Public Official Election and Prevention of Unlawful Election Act (amended by Act No. 7681 of Aug. 4, 2005)

[1] Supreme Court Decision 84Do274 delivered on February 26, 198 (Gong1985, 521 delivered on February 24, 1998) / [2] Supreme Court Decision 96Do59 delivered on February 24, 1998 (Gong1998Sang, 934 delivered on January 27, 2004) / [3] Supreme Court Decision 86Do133 delivered on March 11, 1986 (Gong1986, 664 delivered on February 29, 205) 209Do2969 delivered on May 10, 206 (Gong1986, 664 delivered on February 29, 205) / [209Do3979 delivered on May 10, 209)

Defendant

Defendant

Seoul High Court Decision 2005No191 delivered on June 21, 2005

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the non-appeal

A. The suspicion of delivery of money by Nonindicted Party 1

(1) The degree of the statement of false facts in the crime of false accusation is sufficient to urge the investigative agency or the supervisory agency to exercise the authority to investigate or take disciplinary action, and it is not necessarily required to specify the facts constituting the crime or the facts requiring disciplinary action (see Supreme Court Decision 84Do2774, Feb. 26, 1985). Thus, the defendant's allegation in the grounds of appeal pointing this out is clearly a statement of fact that "the suspicion that Non-Indicted 1, a candidate for the Do council member, who is the (name omitted) party of the charges of this case submitted by the investigator, was elected as the candidate after inserting only KRW 1,000 as the operating expenses for the district (name omitted) district party in Suwon, which is the part related to this part of the charges of this case's accusation submitted by the investigator." Thus, it cannot be deemed that the above part is merely an expression of opinion, and it does not change even if it is part of the newspaper article. This part of the grounds of appeal pointing this out is not acceptable

(2) The crime of false accusation is established when the reported fact goes against the objective truth with the intention of having another person subject to criminal punishment or disciplinary disposition, and the requirement that the reported fact goes against the objective fact requires positive proof. The requirement that the reported fact goes against the objective fact should be proved. The mere passive proof that the authenticity of the reported fact cannot be recognized is a false fact contrary to the objective truth, and the establishment of the crime of false accusation cannot be acknowledged (see, e.g., Supreme Court Decisions 96Do599, Feb. 24, 1998; 2003Do5114, Jan. 27, 2004).

However, the relevant evidence and records revealed to the effect that “Non-Indicted 2 has not received political funds from Non-Indicted 1,” and Non-Indicted 1 also stated that “Non-Indicted 1 has not paid KRW 50 million as district party operating expenses in relation to the selection of a candidate for the Do council member, and it does not have to report on the Do council member.” Non-Indicted 3, who was the head of the district party, stated that “Non-Indicted 1, who was the secretary of the district party, was aware of whether Non-Indicted 1 was a district party operating expenses,” and Non-Indicted 4 and 5, who was the news reporters of the Mangday news news article on May 2, 2002, refused to attend the investigation agency at the time of telephone conversations with the police officer, did not properly memory the source of coverage and news report, or did not provide any explanation thereon, it did not err in the misapprehension of the legal principles as to the selection of candidate for the election. Thus, it did not err in the misapprehension of legal principles as to this part of the judgment.

(3) The criminal intent in the crime of false accusation is not necessarily required to be a conclusive intentional but also appropriate for dolusent intent. Thus, the crime of false accusation is established by reporting the fact that the reporting person is not true, and it does not require conviction that the reported fact is false (see, e.g., Supreme Court Decisions 86Do133, Mar. 11, 1986; 87Do2366, Feb. 9, 198; 96Do2417, Mar. 28, 197; 96Do2417, Mar. 28, 1997; 9Do2417, etc.). In addition, if there is a perception that another person would be punished or subject to criminal punishment in filing a false report, it is sufficient that another person would be punished or subject to disciplinary punishment, and if the defendant submitted a report to an investigative agency, such recognition has been made so far as the defendant submitted the report.

In light of the above legal principles, this paper examines the records and examines the contents of the court below's decision. The court below is just in holding that the defendant, at least as the defendant, did not recognize that the suspicion of delivery of money and valuables by Non-Indicted 1 goes against objective facts, and thus, there is a criminal intent related to this part of the facts charged. Furthermore, as long as the defendant submitted a written accusation to an investigation agency, it is deemed that there was a perception that the defendant would be subject to criminal punishment, etc., and therefore, it cannot be said that there was no criminal intent because the defendant's purpose of accusation is not to punish the defendant, but to ascertain the truth, and there is no violation of the rules of evidence or misapprehension of legal principles

B. The suspicion of delivery of money by Nonindicted 6

In light of the above-mentioned A. (1) in light of the legal principles as seen in the above, since the defendant's statement in this part of the accusation of this case that "the non-indicted 6, who was going to the pronouncement of the replacement of the 3rd constituency of Suwon-won, Gyeonggi-do, which was implemented on April 24, 2003, was delivered KRW 150 million to non-indicted 2 in return for receiving the contribution from the (name omitted) party, and the non-indicted 2's statement that "the non-indicted 6, who was going to the pronouncement of the replacement of the 3rd constituency of Suwon-won, was used by himself at his own discretion and brought about KRW 70 million to the non-indicted 3, who was the president of the district party, was obviously a statement of fact, the defendant's assertion

In addition, the relevant evidence and the record as follows: (a) although the Defendant took out the suspicion of this part of this part from Nonindicted 7, Nonindicted 7 stated in the court of first instance that “ Nonindicted 2, who received KRW 150 million from Nonindicted 6 and gave Nonindicted 3 the Defendant a false statement to the effect that Nonindicted 2 himself/herself would use KRW 80 million for the election,” and that “ Nonindicted 6 only stated that Nonindicted 2 was written with KRW 150 million as election funds from a re-election, and that Nonindicted 6 said Nonindicted 2 was written with KRW 150 million as election funds.” However, Nonindicted 7 stated that Nonindicted 7 transferred this part of this part of this case to Nonindicted 6’s order from Nonindicted 8, the Central Chairperson of the District Party at the time of the said remarks, and that Nonindicted 50 million as the chairperson of the District Party, was not erroneous in the judgment of the court below in light of the legal principles as to the facts alleged in the grounds for final appeal. However, it did not err in the misapprehension of legal principles as to this part of the evidence.

Furthermore, by comparing and examining the contents of the lower court’s decision based on the legal principles set forth in subparagraph (3) above, the lower court recognized that the Defendant was at least aware that the suspicion of delivery of Nonindicted 6’s money and valuables goes against objective facts, and thus, the lower court’s judgment that the Defendant was guilty of a crime of false accusation related to this part of the facts charged is justifiable. In so doing, the lower court did not err by misapprehending the rules

2. As to the publication of false facts

(1) In order to establish a crime of publishing false facts under Article 250(2) of the Public Official Election Act (amended by Act No. 7681, Aug. 4, 2005; hereinafter “Public Official Election Act”), the crime of publishing false facts shall first be published. Here, the crime of publishing false facts is not consistent with the truth, and if it is adequate for the elector to have the identity of the candidate to the extent that the elector can cause an accurate judgment on the candidate, it does not constitute merely an expression of opinion with simple value judgment or evaluation (see, e.g., Supreme Court Decisions 99Do4260, Apr. 25, 200; 201Mo193, Apr. 10, 2002; 2003Do194, May 30, 2003).

위 법리에 비추어 살펴보면, 피고인이 이 사건 고발장에 기재하고 있는 앞서 본 공소외 1의 수천만 원의 금품교부 의혹, 공소외 6의 1억 5,000만 원 금품교부 의혹뿐 아니라, “2002. 6. 13. 지방선거로 김용서가 시장이 된 후 10월, 11월부터 수원터미널에서부터 비행장까지를 비롯한 수원시내 일대 멀쩡한 보도블록을 교체하였으며 전국 지방단체장들의 3분의 2가 (당명 생략)당인 상황에서 공소외 2가 그 국회의원이라는 직위를 이용해서 전국적으로 얼마나 많이 팔아 먹었겠는가?”라는 보도블럭 납품의혹과 “수원시와 농협의 공동투자로 불휘라는 고가의 민속주를 만들었는데 공소외 2가 공항납품과 군납을 도왔다고 하며 신의원( 공소외 2)의 이권개입이 있었을 것이라고 하였다. … 그 과정에서 부정이 있었을 가능성이 있으므로 철저히 조사해야 할 것이다.”라는 민속주 납품의혹 등에 관련된 내용은 구체적인 사실의 적시에 해당함이 분명하므로, 이에 반하여 이 부분이 단순한 의견표현에 불과하다는 피고인의 상고이유 주장은 받아들일 수 없다.

(2) In order to establish the crime of publishing false facts under Article 250 (2) of the Public Official Election Act, it is necessary for a prosecutor to actively prove the fact that the public prosecutor made public is false, and it is not possible to establish the crime of publishing false facts solely on the fact that there is no proof of false facts (see Supreme Court Decision 2003Do5279, Nov. 28, 2003). Meanwhile, a person who actively asserts that there is suspicion against a person who asserts that there was no suspicion in the crime of publishing false facts, shall be liable to present materials that can prove the existence of such a fact. The prosecutor can prove that it is false by means of minimizing the credibility of the materials presented (see Supreme Court en banc Decision 2001Do6138, Feb. 20, 200). In light of the above legal principles, the mere presentation of the materials presented at the time is insufficient to present at least to the extent that the prosecutor's activity can be proven, or if there is no doubt that the materials presented at the market price 205.205.

In light of all the circumstances indicated in the reasoning of the judgment and records based on the above legal principles, namely, the defendant only prepared the above mentioned facts based on the abstract contents of local newspapers or non-indicted 7's information, and did not undergo any process of confirmation, and there are no additional materials supporting the truth of the accusation, on the other hand, except the abstract article or non-indicted 7's information presented by the investigation agency as a result of the investigation agency's investigation into the accusation of this case, while the above suspicions published in the accusation of this case constitute false facts, and the defendant seems to have had dolusence on the fact that such facts are false, so the court below's judgment to the same purport is just, and there is no error in the misapprehension of legal principles as to the crime of publishing false facts under Article 250 (2) of the Public Official Election Act.

(3) In the crime of publishing false facts under Article 250(2) of the Public Official Election Act, “the purpose of preventing the election from being elected” is to make the publication of false facts known to the effect that the candidate is unable to be elected, and it does not require that the result be actively expressed or desired.

According to relevant evidence and records, the defendant prepared and submitted a written accusation of this case on March 9, 2004, when the 17th National Assembly election of April 15, 2004 was imminent, and submitted to an investigation agency on March 9, 2004, as well as distributed a written accusation to the party who entered the court, and further posted a written accusation on the website of Suwon District Court, and thus, there is a perception that the defendant would not be elected in the 17th National Assembly election of the 17th National Assembly member. Thus, the court below's decision to the same purport is just, and there is no error in the misapprehension of legal principles as to the grounds for appeal.

3. As to the remaining grounds of appeal

In this case where a fine is imposed on the defendant with respect to the crime of false accusation and publication of false facts, the reason that the court below’s sentencing is excessive shall not be a legitimate ground for appeal.

In addition, it cannot be said that there is no legitimate ground of appeal, or that there was no influence on the conclusion of the judgment, such as the error, omission of arguments, and coloring of the context in the trial records of this case alleged by the defendant.

Furthermore, even if the records are examined in detail, there is no evidence to see that the prosecution abused the discretion of prosecution, and considering the Defendant’s argument that respect the citizens’ right to know and that the political aspect should be considered to eradicate corruption, there is no obstacle to finding the guilty of each criminal fact as stated in the judgment of the court below. Thus, the grounds of appeal pointing this out cannot be accepted.

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)