Kim Jin Kim

Prosecutor

Maternity

Seoul Northern District Court Decision 2004Gohap1079 Delivered on September 22, 2004

The prosecutor's appeal is dismissed.

1. Summary of the prosecutor's grounds for appeal;

(a) Grounds for appeal against the acquitted portion;

Although the Defendant did not directly file a written accusation or a written petition with an investigative agency, the Defendant filed a false statement with the intent of evading the payment of the check which the Defendant issued in a normal manner and having the victim punished, and demanded the Nonindicted Party, who was the person in charge, to file a false statement with the investigative agency, to file a complaint with the said victim against the said investigation agency. Accordingly, unlike the Defendant’s demand, the said Nonindicted Party filed a false accusation with the investigative agency by making the Nonindicted Party as the person in charge of the investigation, contrary to the Defendant’s demand, and made an investigation by the investigative agency as a witness for the said accusation, and made the said victim false statement with the intent of false accusation. Accordingly, the Defendant reported to the investigative agency for the purpose of having the victim punished, but the lower court erred by misapprehending the legal doctrine

B. The assertion of unfair sentencing

Unlike the case where the Defendant simply reported loss for the purpose of evading payment of the check money, in light of the fact that the Defendant’s sentence against the Defendant (a fine of KRW 800,000) is uneased and unfair, given that the Defendant’s act of specifying a specific person as a forgery of the check and reporting the forgery

2. Determination on the grounds for appeal

A. Determination on the grounds of appeal as to the non-guilty portion

(1) Summary of the facts charged

When the Defendant reports an accident to a bank in which the victim has forged and used the check issued by him, the bank directly files an accusation with the investigative agency against the above victim as the defendant's client, his name or the defendant as the defendant, and then files an accusation with the investigative agency against the defendant who has reported the forgery of the check with the bank as the defendant's client, in any case, it is anticipated that the defendant would be subject to investigation by the investigative agency; using the opportunity to make the victim aware of the forgery of the check; and in order to have the victim, who has not forged the check, report false facts to the non-indicted at the mid-gu, Seoul Metropolitan City, Chungcheongnam-gu's Jungdong Office, Jungdong-dong, and the same shall apply to the non-indicted using the check; and on June 20, 2003, the Defendant filed a complaint with the investigative agency on the fact that the defendant has forged the check; and on July 30, 2003, the Defendant filed a false accusation with the police station stating that he has forged the check; and filed the victim with the investigation agency for a specific witness in the check.

(2) The judgment of the court below

The court below declared the defendant not guilty on the ground that the above facts charged constitute a case where there is no proof of a crime, since the defendant was investigated by the investigative agency as a witness of the above accusation case, although the defendant reported a false fact that the victim was forged to a financial institution and demanded the non-indicted who was in charge to file a complaint against the victim. However, since the above non-indicted 1 prepared a written accusation against the defendant and submitted it to the investigative agency under his own judgment, the above non-indicted 1 cannot be deemed to have used the above non-indicted 1 as a tool.

(3) Judgment of the court below

(A) In full view of the evidence duly admitted by the court below as well as the statements made by the investigation agency of the defendant, the statements made by the Nonindicted Party in the investigation agency and the court of the court below, and the statements made in each accusation bound by the investigation records, the following facts can be recognized.

① On January 21, 2003, the Defendant issued to the victim six copies of the household check (the number: 09830865 to 09868, 09830871, 09830871, 09830872, 30 million won at face value; hereinafter “the check of this case”) that the Defendant normally issued at the office located in Seoul (the name of the building and the number of rooms omitted) (the name of the building and the number of rooms omitted).

② On June 20, 2003, the Defendant made a false report to the person in charge of the non-indicted who was unaware of the check of this case, with the intent to avoid the payment of the check of this case, when the above victim arbitrarily used the check of this case that was delivered to check as above, that “The victim kept them for checks without stating the date of issuance and face value, and distributed them at will by arbitrarily stating the date of the Plaintiff’s gambling and face value.”

③ Although the above victim reported that he forged the check of this case, on June 27, 2003, the above non-indicted 1 prepared a letter of accusation that part of the check of this case was forged with the defendant as the defendant, and submitted it to the Jungran Police Station on July 1, 2003. On July 4, 2003, when he was investigated as a witness by the Jungran Police Station as of July 1, 2003, the defendant stated that the defendant was the defendant as the defendant. The check of this case was forged with the part of the check of this case, which was kept for check with the above victim at face value and at face value, and with each blank of issue date, the check of this case was stated to be corrected as the non-indicted 1's name. In addition, on June 30, 2003, the above non-indicted 1 prepared a letter of accusation that part of the check of this case was forged and submitted to the Police Station on July 10, 2003.

④ On July 4, 2003, the Defendant made a statement to the effect that there is any suspicion against the above victim against the prosecution of an investigative agency, when he was investigated as a witness of the above accusation case by the Jungran Police Station, on the prosecution of the above accusation case.

⑤ After the investigation process, it was revealed that the Defendant issued the check of this case normally.

(B) First, we examine whether the defendant constitutes an indirect crime of false accusation.

Even though the above victim attempted to use the above non-indicted who was unaware of the circumstance for the purpose of having the victim punished, according to the above facts of recognition, the above non-indicted was accused of the defendant's non-indicted's personal injury despite the defendant's false report, so the above non-indicted was accused of the defendant's personal injury according to his own intention. Thus, it cannot be deemed that the above non-indicted was used as the defendant's criminal intention, and even if the above non-indicted was used as the defendant's criminal intention, the defendant's attempt which was trying to dismiss the above victim was committed by filing an accusation with the investigation agency by making the above non-indicted's name as the non-indicted's personal injury, and the criminal law does not have any provision punishing the defendant for attempted crimes of non-indicted's personal injury, and thus, the defendant cannot be punished as an attempted crime

(C) Next, we examine whether it constitutes a crime of false accusation for the defendant to identify the above victim as a suspect of forgery of a check after being investigated by the Jung-gu Police Station.

Since the crime of murdering and false accusation is established 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 on him/her voluntarily without being subject to the questioning by an investigative agency, even though the defendant was investigated as a witness for the above accusation case at the Jungran Police Station on July 4, 2003, and the defendant made a statement to the purport that the above victim is doubtful, the above statement does not constitute a crime of false accusation, even if the defendant made a statement to the purport that there is a suspect for the above accusation case.

(D) If so, it is difficult to see that the defendant's act constitutes a crime of false accusation, and there is no other evidence to prove that the defendant was not guilty, and the judgment of the court below which acquitted the defendant is just, and there is no reason to hold the prosecutor's appeal.

B. The point of unfair sentencing

However, even though the defendant made a false report to a financial institution, if the defendant arbitrarily uses the check which the above victim had delivered for the check, and made a false report to avoid the payment, there are reasons to consider the situation. In light of the defendant's age, character and conduct, intelligence and environment, relationship with the victim, circumstances of the crime, means and consequence, etc., and other various factors specified in Article 51 of the Criminal Act, which are conditions for sentencing as stated in the instant case, such as the defendant's age, character and conduct, intelligence and environment, relationship with the victim, circumstances of the crime, means and consequence, etc., the punishment imposed by the court below is appropriate and it is not recognized that the sentence is unreasonable because it is unreasonable. Thus, the prosecutor's assertion

3. Conclusion

Therefore, the appeal by the prosecutor is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since all of the appeal by the prosecutor is without merit. It is so decided as per Disposition.

Judges Yoon Jin-jin (Presiding Judge)