The case holding that it does not constitute a false report for the crime of false accusation that, after the defendant filed a complaint with the borrower by fraud, the borrower sent a false answer to the borrower as the borrowed amount is not related to the gambling of the borrowed amount, while making a supplementary statement to the borrower.

The case holding that it does not constitute a false report in the crime of false accusation that, after the defendant filed a complaint with the borrower by fraud, the borrower's supplementary statement and the borrower's answer that the borrowed amount is different from the fact about the original purpose of the borrowed amount is not related to gambling.

Article 156 of the Criminal Act

Defendant

Defendant

United States of America

Ulsan District Court Decision 2005Ra1077, 2005Ma1006 decided July 20, 2005

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than one year and six months.

The fifty-six days of detention before pronouncement of the judgment below shall be included in the above sentence.

However, the execution of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive.

To order the defendant to be put on probation.

1,00,000 won shall be additionally collected from the defendant.

Of the facts charged in the instant case, the charge is innocent.

Grounds for Appeal and Determination

1. Summary of grounds for appeal;

A. misunderstanding of facts or misapprehension of legal principles

As to the non-indicted 1's non-indicted 1's complaint, the defendant first lent 10 million won to non-indicted 1 on October 20, 202 that he paid a large amount of interest. However, the defendant was aware of the fact that he did not pay the money at the date of repayment and thus he did not go to gambling in the money. After that, the non-indicted 1 asked Non-indicted 1 to pay the money for gambling, he borrowed additional KRW 10 million to the non-indicted 1, who was able to pay the money with a card loan and borrowed additional KRW 5 million on November 30, 2002. The court below erred by misapprehending the legal principles, or by misapprehending the legal principles, which found the non-indicted 1 to have committed an unlawful crime of this case.

B. The assertion of unfair sentencing

In light of the fact that the Defendant had been living extremely in the past but committed the crime of receiving the instant phiphones, and that the commission of the above crime was due to Nonindicted Party 2’s request for the summary, and that the Defendant’s cooperation at the time of the investigation of the instant case was seized 78g of philopon and two narcotics were arrested, the sentence of the lower court against the Defendant (one year and six months of imprisonment, three years of suspended execution, three years of probation, and one hundred thousand won of penalty) is too unreasonable.

2. Determination:

A. Judgment on misconception of facts or misapprehension of legal principles

(1) Of the facts charged in the instant case, the facts charged and the judgment of the court below

(A) Summary of the facts charged

Around May 12, 2004, the Defendant: (a) lent money from time to time to time with gambling funds from the Defendant’s residence located in Busan (detailed address omitted); (b) but (c) when the Defendant was unable to receive the repayment of the borrowed money from the Defendant, the Defendant filed a false accusation as if he lent money under the pure loan source; (d) thereby having the Defendant receive criminal punishment against the Defendant; and (e) on the top of the Defendant’s residence, the Defendant filed a false complaint with the Defendant for the purpose of having the Defendant receive criminal punishment by filing a false accusation as if he lent money under the pure loan source; and (e) on the top of the Defendant’s residence, the Defendant filed a false complaint with the Busan Shipping Station by borrowing money with a new card and having the Defendant receive the said money from October 202 until the end of the year; and (e) by having the Defendant receive it from the Busan Shipping Station on the 17th of the same month.”

(B) The judgment of the court below

As to this, the lower court found the Defendant guilty on the ground that “the legal statement of the Defendant (the second trial date of the original trial), the protocol of the interrogation of the Defendant’s prosecution, the protocol of the interrogation of the suspect against Nonindicted Party 1, the protocol of the police testimony against the Defendant and Nonindicted 3, and the protocol of the accusation

(2) The judgment of this Court

(A) Recognized facts

According to the evidence duly examined and adopted by the court below, the following facts can be acknowledged:

① Around May 17, 2004, the Defendant filed a complaint with the effect that “Non-Indicted 1, the Defendant, who is the Defendant, had borrowed the sum of KRW 25 million on three occasions by promising the Defendant, the complainant, to repay the credit card loans from the Defendant on December 30, 2002, but he did not receive credit card loans and does not contact with the Defendant, thereby punishing the Defendant as a crime of fraud.” (Article 204-type No. 22140, No. 2 and 3 of the Busan District Prosecutors’ Office, the Dong District Prosecutors’ Office, 2004 type No. 2 and 3 of the investigation records).”

② On June 7, 2004, the Defendant did not prepare a loan certificate at the police’s statement on the supplement of the complaint, but believed Nonindicted 3 as her pro-Japanese and her pro-Japanese, and received the card service from Nonindicted 1 on October 2002, 200,000 won in cash, delivered KRW 10 million on August 8, 200 of the same year, and lent KRW 25 million in total over three times on three occasions by giving KRW 5 million on the 30th of the same month, and asked the police officer to question whether he was not a debt related to gambling.

③ On December 14, 2004, after the arrest of Nonindicted Party 1 on suspicion of fraud, Nonindicted Party 1, with the knowledge that money lent to the Defendant in the front-time role of lending money in the gambling room, was used as gambling funds, and stated to the effect that the sum of the amounts borrowed from the Defendant was KRW 25 million in total on several occasions (25,000,000 won in total). (In the Busan District Public Prosecutor’s Office’s Dong District Public Prosecutor’s Dong Office No. 2005-type No. 1487, 5640, the investigation records No. 13, 14 of the investigation records No. 2005

④ On the same day, Nonindicted 3 made a statement to the effect that the amount of money that the Defendant lent from the police station to Nonindicted 1 is the money lent from the gambling board to the gambling fund even if it is accurate (the 18th page of the investigation record).

⑤ After that, the Defendant stated that Nonindicted Party 1 lent the above money to Nonindicted Party 1 on October 20, 2002, around KRW 10 million, around November 8 of the same year, and KRW 10 million on March 30 of the same month, including KRW 5 million, to Nonindicted Party 1 for gambling purposes, in the second complainants’ statement and interrogation of suspects of the prosecution (the above investigation records No. 27 and 51).

(b) the sales board;

The crime of false facts is established when any other person reports false facts to a public office or a public official for the purpose of having a criminal punishment or disciplinary action against him/her. Even if a part of the reported facts is false, such false part does not affect the sexuality of a crime, and it does not constitute a crime of false accusation if it is merely an exaggeration of reported facts (see, e.g., Supreme Court Decisions 2002Do5939, Jan. 24, 2003; 2003Do7178, Jan. 16, 2004). In addition, in a case where the complainant files a complaint with a loan fraud with the purport that the borrower deceives the borrower about the intent of repayment and the existence of ability, it does not constitute a report of false facts in the crime of false accusation, and in filing such complaint, it cannot be deemed that the complainant reported false facts only on the ground that the borrower did not disclose the fact that the borrower used the borrowed money as an gambling fund, etc. (see, e.g., Supreme Court Decision 2004Do294).

As seen in the above, the defendant filed a complaint with the purport of deceiving the borrower about the intent to repay and his ability. In such a case, regardless of the purpose of the loan, there may be cases where the defendant can sufficiently recognize the intent to repay the loan or his ability. Thus, even if the defendant received a supplementary statement concerning the actual purpose of the loan and made a simple statement that is not related to the gambling loan, it cannot be said that such statement alone makes a false statement to the extent that it affects the nature of the crime of fraud (if the defendant stated that the money was money for gambling, it does not necessarily escape criminal punishment of fraud). Further, even if the defendant stated that the money was money for gambling, it does not constitute a crime of fraud if the defendant, who is the defendant, stated that he did not lend the money for the loan to the extent that he did not receive any punishment for the alteration of the legal nature of the money for the loan, and it does not constitute an unlawful act of fraud, and it does not constitute a case where the defendant, who is the defendant, stated that he did not have the nature of the money for the loan.

B. Sub-committee

Therefore, among the facts charged in this case, there is no sufficient evidence to acknowledge it, and thus, a not-guilty verdict should be rendered. However, the court below erred by misapprehending the legal principles as to the non-guilty charges, thereby finding the guilty guilty. The defendant's allegation pointing this out is with merit, and the court below rendered a single punishment as concurrent crimes including this part. Thus, the judgment of the court below without further need to determine the defendant's assertion on the above unfair sentencing cannot be maintained in its entirety.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and the judgment is delivered as follows.

Although the Defendant is not a person handling narcotics, the Defendant:

On May 9, 2005, around 01:00, the Plaintiff delivered approximately 0.03g of psychotropic drugs purchased from Non-Party Kim Sung-sung to Non-Party 2 for free, and received them from Non-Party 2.

1. Defendant's legal statement;

1. A protocol concerning the suspect examination of the accused;

1. Copy of Nonindicted 2’s protocol of interrogation of suspect

1. Article applicable to criminal facts;

Act on the Control of Narcotics, etc. (the point of delivery and receipt of Mesa amba amba amba amba amba amb)

1. Selection of punishment;

Imprisonment Selection

1. Calculation of days of detention;

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (Taking into account the fact that the defendant's cooperation in the investigation of a narcotic offender and reflects his mistake in depth)

1. Probation;

Article 62-2 (1) and main sentence of Article 62-2 (2) of the Criminal Act

1. Additional collection:

The proviso of Article 67 of the Narcotics Control Act

Of the facts charged in this case, the summary of the facts charged is as shown in the grounds of appeal and judgment 2.1 (A). As such, since there is no proof of a crime for the same reason as stated in paragraph (2) of the same Article, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

It is so decided as per Disposition for the above reasons.

Judges High-Level (Presiding Judge)