208No1334 Non-Dismissal

Han ○

Seoul Residence

Seoul basic domicile

Defendant and Prosecutor

Lee Nam-soo

Attorney Lee ○-soo (Presiding over National Assembly)

Seoul Southern District Court Decision 2007Ma388 Decided July 30, 2008

July 22, 2010

The judgment of the court below is reversed.

The defendant shall be innocent.

1. The facts charged in this case

On April 3, 2004, the Defendant: (a) purchased mobile phones of ○○ Telecom Co., Ltd. (hereinafter “○○○ Telecom”); (b) but filed a complaint against the president of the above agency, ○○○ and the remaining representative director of ○○ Telecom, etc. for fraud on January 3, 2005; (c) around the Seoul Southern District Prosecutors’ Office 2005 type No. 891 (hereinafter “Seoul Southern District Prosecutors’ Office 2005 type No. 891); (d) on January 4, 2005, ○○○○○, who was cultivated the above case, received a decision to transfer the instant case to the Daejeon District Prosecutors’ Office; and (d) subsequently, (e) received a decision to finally dismiss the Defendant from the Seoul High Prosecutors’ Office 2005 type No. 12874 and the Defendant did not file an appeal against the Seoul High Prosecutors’ Office, but (e) did not dismiss the lower court’s final appeal or reappeal.

A. Fact does not mean that the prosecutor of the Seoul Southern District Prosecutors' Office planned that ○○○○ prior to the Seoul Southern District Prosecutors' Office will either handle the case without suspicion, or make him deduction of the case outside of the case “for the purpose of investigation of innocence,” and that there is no false order cell attached to the defendant’s criminal complaint under the direction of investigation while sending the criminal complaint submitted by the defendant to the Gangnam Police Station, and there is no abuse of official authority, such as distorted the investigation direction of the above police station investigators, distorting the investigation direction of the above police station investigators, or excluding the case, and the prosecutor ○○○ was cultivated from the former ○○○○○○○, while he did not properly conduct the investigation of the above case with the former ○○○○○○, without making a basic investigation by intentionally abusing his authority, and without making the latter ○○○○, O○○○, the Police Station, and the latter ○○○○○ and the latter ○○ did not receive any order from the latter ○○, and there is no error in handling the case.

Nevertheless, on March 16, 2005, the Defendant: (a) prepared an order to prevent ○○○○○○○○ apartment complex from being subject to criminal punishment on the Defendant’s house located in Gangseo-gu Seoul Metropolitan Government ○○○○○○○○○ apartment complex; (b) prepared an order to prevent ○○○○○○○○○ from being subject to criminal punishment on the Defendant’s house; (c) submitted the order to prevent ○○○○○○○○○○ from being subject to criminal punishment on the Defendant’s body; (d) submitted the order to prevent ○○○○○○○○ from being subject to criminal punishment on the Defendant’s house located in Seoul Southern District Prosecutors’ Office; and (e) submitted the order to prevent ○○○○○○○ from being subject to criminal punishment on the Defendant’s body; and (e) failed to comply with the direction of the investigation on the Defendant’s remaining ○○○○ Office from being subject to criminal punishment on the Defendant’s own body; and (e) failed to comply with the direction of the investigation on the Defendant’s body.

B. The facts are as follows: (a) the former ○○ intended to process the Defendant’s abuse without suspicion; or (b) the Defendant’s submission of the accusation to the Gangwon Police Station to instruct the investigation; (c) there is no false command cell that contains false details of the accusation; and (d) there is no device that instructs the above police station investigator to destroy a gold command cell with the former ○○○.

Nevertheless, on July 24, 2006, the defendant filed a complaint with the prosecutor at the Seoul Southern District Public Prosecutor's Office (the prosecutor ○○○○ was the Seoul Southern District Public Prosecutor's Office) under the above prosecutor's office 2005 type No. 891, and the defendant sent the written complaint submitted by the defendant to the Gangwon District Public Prosecutor's Office to deal with the charges, and attached a false order cell to the defendant's order while carrying out an investigation. Accordingly, the defendant prepared a written complaint stating false matters to be punished, and submitted it to the public prosecutor's office in the above public prosecutor's office to the public prosecutor's office, and received it by the employee in charge, and then dismissed the above ○○.

2. The judgment of the court below

In full view of the evidence duly examined and adopted by the lower court, the lower court convicted the Defendant of the crime of false accusation on the ground that the aforementioned facts charged are recognized.

3. Judgment of the court below

(a) Facts of recognition;

1) On December 20, 2003, the Defendant filed a complaint against the Defendant’s ○○○ Telecom representative director, etc.) to pay KRW 1,50,000,000 to around 1,210,000,000,000 to around 30 times, a multi-level marketing company, a multi-level marketing company, a member of ○○○○○○○ (hereinafter “○○○○”), a member of the member’s door-○○○○○○○○, a member of the company, subscribed to and paid KRW 1,210,00 on the day of joining the company.

B) ○○○, the representative director of ○○○○○○○○, a specific telecommunications business operator, established ○○○○○○○○○, a corporation (hereinafter referred to as “○○○○○○○○○○○○○”) and entered into a contract on the radio resale business with ○○○○○○ Telecom members, etc. Around April 2004, the Defendant purchased a mobile phone device from ○○○○○○○○, a Defendant’s wife, in the name of the Defendant’s wife (a written contract on the purchase of a mobile phone, accompanied by the name and seal of the representative director of ○○○○○○ Telecom, affixed the official seal of the representative director of the mobile phone).

C) The Defendant was paid KRW 650,000 from ○○○○○ to April 25, 2004, but the remainder KRW 850,000 was not received from the last day of April 2004 as the wind that ○○ closed and locked by the last day of April 2004.

D) The Defendant, on January 3, 2005, filed a complaint with the Seoul Southern District Public Prosecutor’s Office to commit fraud, on the following grounds: (a) the ○○○○ acquired the investment funds from ○○○○○○ Members; and (b) considered that ○○, the representative director of the said ○○ Telecom, was involved in the act of defrauding the ○○○○○○○○○○ by

E) Meanwhile, on the other hand, the crime of fraud was already prosecuted at the Daejeon District Court around December 29, 2004, on the grounds that ○○○ was a situation in which ○○○ was unable to make profits to ○○○ members, and acquired money by deceiving members. (The Daejeon District Court 2004Da3702), the largest ○○ was sentenced to 7 years of imprisonment in the first instance of the above case, and 6 years of imprisonment in the second instance, and the final appeal was dismissed, and 6 years of imprisonment became final and conclusive.

2) The case of the above accusation against the Defendant’s ○○ and the Defendant’s ○○, etc. was conducted at the Seoul Gangseo-gu Police Station under the investigation direction of the Defendant, prior to the prosecutor in charge. However, the investigation direction is accompanied by a summary summary of the statement that “The Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s Defendant’s charge of causing property damage with an amount equal to 20% of the mobile phone usage fee every month by deceiving the Defendant around 204.” (Provided, That it is evident that the prosecutor directly conducted the ○○○○○ Prosecutor).

B) Around January 31, 2005, around February 2, 2005, around February 11, 2005, and around February 11, 2005, an investigator of the Seoul Gangseo-gu Police Station investigating the Defendant. An investigator ○ investigated the Defendant around February 17, 2005, and the Defendant filed an application for challenge against the said investigator on the ground that the investigator is not guilty, including the withdrawal of the complaint against South ○.

C) Since then, the prosecutor in charge of the above accusation case changed to the ○○○○○, and on March 14, 2005, the ○○ Prosecutor sent the above accusation case to the Daejeon District Public Prosecutor’s Office, which had the jurisdiction over the ○○○○○’s residence, around March 14, 2005 without any investigation on the remaining ○○○, (a written opinion prepared by the police, stated that the prosecutor failed to investigate the suspect due to the lack of personal information on the remaining ○○). The Daejeon Public Prosecutor’s Office dealt with the accusation against the remaining ○

D) On March 16, 2005, the Defendant abused its authority by investigating the purpose of pre-guilty innocence in order to handle the remaining ○, a total number of re-criminals, to the Seoul Southern District Prosecutors’ Office (hereinafter “the Defendant filed a complaint with the purport of “the prosecutor’s prior to the prosecution, ○○○, ○○, Professor○, Investigators, Investigators, Professor○, Investigators, and South ○,” and the Defendant filed a complaint with the effect of “the Defendant filed a complaint with the purport of

E) The above complaint against the above pre-director was dismissed on the ground that it was evident that there was no suspicion on April 28, 2005, and the defendant filed an application for a ruling against it, but was dismissed on July 19, 2005. Nevertheless, on July 24, 2006, the defendant filed a second complaint against the pre-director on the ground that he directed the Seoul Southern Southern District Prosecutors' Office to conduct an investigation by attaching a false command to the part of the order (the complaint stated in paragraph (2) of the facts charged in the instant case).

3) On January 4, 2005, the Defendant filed a lawsuit for damages claim as Seoul Southern District Court No. 2005 against the Defendant on the following grounds: (a) on January 4, 2005, the Defendant filed a lawsuit for damages claim as Seoul Southern District Court No. 1696; and (b) on this, the Defendant filed an appeal and a final appeal but all dismissed.

B) Accordingly, the Defendant continued to file a complaint against 78 Justices, judges, public prosecutors, prosecution investigators, police officers, etc. related to the judgment or disposition of a case in which he/she filed a complaint, and the said complaint was dismissed without any special additional investigation (the judgment of rejection of the complaint as above is written “no suspicion of non-prosecution” in entirety).

C) On February 7, 2007, the prosecutor of Kim○○, who was in charge of one of the above accusation cases of the Defendant, confirmed the Defendant’s in-house and the Defendant’s in-house (the Seoul District Criminal Court 76 Godan7078 case: imprisonment with prison labor for ten months, and two years of suspended execution), and prosecuted the Defendant as the facts charged in the instant case on February 7, 2007. The court of this case (the progress of the instant trial) appointed the Defendant as the Defendant’s public defender pursuant to Articles 282 and 33(1)3 of the Criminal Procedure Act, and ordered the appointment of the Defendant as the Defendant’s public defender pursuant to Article 282 and Article 33(1)3 of the Criminal Procedure Act. The lower court convicted the Defendant, and the Defendant did not faithfully present his case.

B) Although the court of the first instance was appointed as a public defender by the defendant as a public defender, ○○○ lawyer was resigned for the same reason that he could not form trust relationship with the defendant, ○○○ lawyer later resigned for the same reason, ○○○ lawyer appointed later resigned for the same reason, ○○○ lawyer thereafter resigned for the same reason. ○○○ lawyer appointed later resigned for the same reason, and later resigned for the same reason. ○○○○○ lawyer later resigned for the same reason, and thereafter appointed ○○○○ lawyer thereafter resigned for the same reason. Although ○○○ lawyer was already appointed for the same reason, ○○○ lawyer was allowed to resign for the same reason, but the court rejected the resignation, thereby protecting the defendant until

C) The Defendant asserts that the instant case is a U.S. case with no substance, and the prosecution filed an application for the change of the trial date on the grounds of the amendment of the indictment during the trial of the lower court, but the prosecution decided not to amend the indictment on the fifth trial date, and the computerized temporary errors on the contents of the instant case (hereinafter referred to as the “written indictment”) were alleged to have been revoked on the grounds of the computerized errors on the grounds of the instant indictment (hereinafter referred to as the “written indictment”), and repeated arguments that are difficult to accept on the regular basis. In addition, the Defendant raised an objection as to almost most of the trial records related to the examination of witness, and raised an objection as to the examination of witness, and the trial division in charge did not have been aware of the situation and determined as the Defendant’s mental condition did not go beyond the normal range.

(b) Relevant legal principles;

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. The crime of false accusation requires the risk of having the other party subject to criminal or disciplinary punishment due to the reported facts. Even if certain details are included in the reported matters, if it is not independently subject to criminal punishment, etc., but merely exaggeration the circumstances of the reported facts, or if it is related to the contents that do not directly affect the sexuality of the crime, considering the overall existence of some false facts, it does not constitute a crime of false accusation (see, e.g., Supreme Court Decision 2006Do2963, Sept. 28, 2006). In addition, even if it is inconsistent with the objective facts, the reporting person should be aware that the reported matters contravenes the objective facts, and thus, it does not constitute a crime of false accusation if the reporting person has confirmed that it is true, or if it is not known that there is a possibility that the reporting person has any possibility of false or false facts without being declared 000 or 200.

C. Determination

1) As seen earlier, the Defendant appeared to have suffered property damage of 850,000 won due to the ○○○○○○○○○○○○○○○○○, and the head of the competent prosecutor’s office determined that it was related to ○○○○○○○○○○○○○, and stated matters different from the purport of his criminal complaint. The investigator in charge used the withdrawal of the complaint against the Defendant, and transferred the case to Daejeon District Prosecutors’ Office without any investigation. The Defendant, who did not have legal knowledge, did not receive benefits from the investigation process because ○○○ is the total number of 20,00,000, and it appears that it was difficult to view that ○○○○○○○○○○○○○, which was a subjective one of the instant facts charged, to the effect that the Defendant was not guilty, and that ○○○○○○, which was an abuse of authority by deceiving the Defendant’s prior to the investigation process, by stating that it was an abuse of authority by 100,0000 won.

3) Of the facts charged in paragraph (1) of this case, the part stating that ○○ was transferred from ○○○○ to the effect that ○○○○ received the above accusation and did not conduct a basic investigation after passing through the direction of the pre-guilty investigation, and that ○○ rendered a disposition without suspicion of abuse. The purport of ○○○○ is to evaluate ○○○○ as “the purpose of pre-guilty investigation” on the basis of facts transferred to the Daejeon District Public Prosecutor’s Office without any investigation. Although ○○○ received “(the direction of pre-guilty investigation)” from ○○○○, it cannot be deemed that the above false facts constitute a crime of abusing official authority or of neglecting official duties, it cannot be deemed that ○○○○ constitutes a crime of non-guilty accusation, and thus, it does not constitute a crime of non-guilty accusation even if the Defendant did not respond to the investigation without any subjective consent of ○○○○○ and ○○○’s body, which did not constitute a crime of non-guilty investigation.

6) The phrase, “before the prosecutor, ○○○,” as stated in paragraph (2) of the instant facts charged, attached the offline of a false order while leading an investigation, is based on the factual basis that the summary of the criminal investigation order by the public prosecutor in charge was written differently from the purport of the criminal investigation, and thus, cannot be deemed as the description of false facts, and thus, cannot constitute a crime of false accusation.

7) In conclusion, as seen earlier, the Defendant’s complaint of this case was filed by the Defendant on the basis of a very different mental and psychological condition or perception from ordinary people (see, e.g., Supreme Court Decision 2009Do1488, Apr. 1, 200).

As a person engaged in a private trial and a person who is in charge of a trial in itself appears to be clearly aware of the fact that his/her assertion is without worth investigating (in this regard, the defendant's complaint is dismissed as stated in the above 3. A. 3-B in many other accusations filed by him/her). On the other hand, the defendant's repeated complaint by the defendant, such as this case, is deemed to cause unnecessary waste of administrative power, and it is judged that there is no risk of the defendant's exercise of the right to impose punishment against the state, and there is no evidence to support that the defendant's complaint has no intention to commit a crime against the defendant or that it is a complaint to the extent that the defendant's exercise of the right to impose punishment against the state is urged.

4. Conclusion

Thus, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged of this case is as stated in Paragraph 2 above, and this constitutes a case where there is no proof of a crime for the same reason as seen earlier, and thus, the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act

The presiding judge shall hear the judge's seat

Kim Jong-soo

Judges Kang Jin-hee