[1] Requirements for establishing an offense of false accusation / Whether a crime of false accusation can be established by readily concluding the reported fact solely with passive proof that the authenticity of the reported fact cannot be recognized (negative)

[2] Matters to be considered when determining the probative value of a statement made by a victim of sexual assault or sexual harassment

[3] Whether the crime of indecent act by compulsion itself constitutes an indecent act by indecent act by indecent act (affirmative), and the degree of the assault required in this case

[1] The crime of false accusation is established when a reported fact goes against the objective truth with the intention of having another person subject to criminal punishment or disciplinary disposition. Thus, the requirement that the reported fact goes against the objective truth requires positive proof. The establishment of the crime of false accusation is not established by readily concluding that the reported fact goes against the objective truth solely with the passive proof that the authenticity of the reported fact cannot be recognized. Even if part of the reported content goes against the objective truth, if it is not an important part affecting the establishment of the crime, but merely exaggerations the circumstances of reported fact, the crime of false accusation is not established.

[2] In light of the fact that victims of sexual assault or sexual harassment have committed negative public opinions and disadvantageous treatment and disclosure of identity when they came to know of the fact of damage, etc., the victim’s response to sexual assault is bound to appear differently depending on the victim’s sex, relationship with the perpetrator, and specific circumstances. Therefore, readily rejecting the probative value of the victim’s statement without sufficiently considering special circumstances where the victims of sexual assault are faced in individual and specific cases can not be deemed as determination of evidence in accordance with logical and empirical rules, based on the ideology of justice and equity.

In a case where a person alleging to be a victim of sexual assault reports the fact that he/she has suffered from sexual assault, etc., and a non-prosecution disposition or a non-guilty judgment is pronounced not guilty on account of insufficient evidence, etc., determination of whether the reported content goes against objective facts and thereby constitutes the crime of false accusation ought to be taken into consideration. Therefore, the court should not readily dismiss a lawsuit claiming sexual assault, etc. on the grounds that the reported content was made a non-prosecution disposition or a non-guilty judgment was false on the ground that he/she was made not guilty of the reported fact that he/she suffered from sexual assault, etc., and that the content of the report should not be readily determined by actively taking into account the fact that he/she was placed in a separate and specific case, without sufficiently considering special circumstances where the claimant

[3] The crime of indecent act by compulsion includes not only the case where an indecent act is committed after the other party makes it difficult to resist by means of assault or intimidation, but also so-called indecent act in which the act of assault itself is acknowledged as an indecent act. In this case, insofar as the assault does not necessarily require the degree of suppressing the other party’s intention and the exercise of force against the other party’s will is exercised, the force is regardless of its power’s exaggeration.

[1] Article 156 of the Criminal Code, Article 308 of the Criminal Procedure Act / [2] Articles 156 and 298 of the Criminal Code, Article 308 of the Criminal Procedure Act / [3] Article 298 of the Criminal Code

[1] Supreme Court Decision 83Do1401 Decided January 24, 1984 (Gong1984, 402), Supreme Court Decision 86Do582 Decided July 22, 1986 (Gong1986, 1149) Supreme Court Decision 96Do771 Decided May 31, 1996 (Gong1996Ha, 2093), Supreme Court Decision 2008Do7451 Decided November 11, 2010 / [2] Supreme Court Decision 2017Du74702 Decided April 12, 2018 (Gong2018Sang, 909), Supreme Court Decision 2018Do709 Decided October 25, 2018 (Gong2018Do74064, Oct. 25, 2018)

Defendant

Defendant

Attorney Lee Dong-chul et al.

Seoul High Court Decision 2017No2773 decided January 31, 2018

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. A. 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. Thus, the requirement that the reported fact goes against the objective truth requires positive proof, and the establishment of the crime of false accusation is not recognized by readily concluding the reported fact that goes against the objective truth only with passive proof that the authenticity of the reported fact cannot be recognized (see Supreme Court Decision 83Do1401, Jan. 24, 1984). Even if part of the reported content goes against the objective truth, if it is not an important part affecting the nature of the crime, but merely exaggerations the circumstances of the reported fact, the crime of false accusation is not established (see Supreme Court Decisions 86Do582, Jul. 22, 1986; 96Do71, May 31, 1996).

B. Meanwhile, in light of the fact that victims of sexual assault or sexual harassment have committed negative public opinions and disadvantageous treatment and disclosure of identity when they came to know of the fact of damage, etc., the victim’s response to sexual assault is bound to vary depending on the victim’s gender, relationship with the perpetrator, and specific circumstances. Therefore, readily rejecting the probative value of the victim’s statement without sufficiently considering special circumstances where the victims of sexual assault are faced in individual and specific cases cannot be deemed as a judgment of evidence in accordance with logical and empirical rules, based on the ideology of justice and equity (see Supreme Court Decisions 2017Du74702, Apr. 12, 2018; 2018Do7709, Oct. 25, 2018).

In a case where a person alleging to be a victim of sexual assault reports the fact that he/she has suffered from sexual assault, etc., and a non-prosecution disposition or a non-guilty judgment is pronounced not guilty on account of insufficient evidence, etc., determination of whether the reported content goes against objective facts and thereby constitutes the crime of false accusation ought to be taken into consideration. Therefore, the court should not readily dismiss a lawsuit claiming sexual assault, etc. on the grounds that the reported content was made a non-prosecution disposition or a non-guilty judgment was false on the ground that he/she was made not guilty of the reported fact that he/she suffered from sexual assault, etc., and that the content of the report should not be readily determined by actively taking into account the fact that he/she was placed in a separate and specific case, without sufficiently considering special circumstances where the claimant

2. A. The summary of the facts charged in the instant case is as follows: (a) for the purpose of having the Nonindicted Party subject to criminal punishment, the Nonindicted Party committed an indecent act by making and submitting a false letter of complaint that the Nonindicted Party committed an indecent act, such as: (i) around 19:00 on May 26, 201, by holding the Nonindicted Party seated next to the Defendant in Seoul ( Address 1 omitted); and (ii) around 22:30 on the same day, he commits an indecent act in such a manner as to make the Defendant walk at alcohol house and go together with the Defendant; and (iii) by making and raising the Defendant’s arms that the Nonindicted Party want to sit at a sofa, and forced the Nonindicted Party to sit in, and forced the Defendant to sit in, the lower part of the Defendant’s arms, and committing an indecent act, such as committing an indecent act to put his own arms into the Defendant’s admission.

B. On the grounds delineated below, the lower court upheld the first instance judgment convicting the Defendant of the facts charged.

1) As to the details of a criminal complaint filed by the Defendant due to indecent act by compulsion, the Nonindicted Party was subject to a disposition of non-guilty by the investigative agency, and the Defendant’s application for adjudication was

2) The Defendant her wreged with the Nonindicted Party for four hours or more, and her wred together with the Nonindicted Party, and was responsible for a considerable amount of time thereafter. There was no circumstance to deem that the Defendant caused sexual humiliation in the process, and rather, the Defendant appears to have been friendly toward the Nonindicted Party.

3) The CCTV images taken after the Defendant and the Nonindicted Party from the drinking house did not have any way to see that the Nonindicted Party committed an indecent act against the Defendant. Rather, there are many pages where the Defendant and the Nonindicted Party seem to have a natural physical contact.

4) Even based on the contents of the Defendant’s complaint itself, the Nonindicted Party did not exercise any tangible power against the Defendant at the time or make a timidating speech.

5) If the Defendant was actually frightened due to a sudden act of the Nonindicted Party, then the Defendant requested for assistance from the surrounding area. However, it is difficult to easily understand that the Nonindicted Party left the taxi simply in the situation where the Nonindicted Party followed at the time of the hedging with the Nonindicted Party, without coping with such demand.

6) Meanwhile, on the other hand, the Defendant consistently asserts that the motive leading to the accusation was due to the Nonindicted Party’s failure to do so by itself with respect to the crime in the instant case, but in light of the fact that around May 27, 2014, the day immediately following the day of the instant case, the Nonindicted Party knee and knee and that the Defendant did so with respect to the motive leading to the accusation, it is difficult to easily understand the Defendant’s assertion on the motive for the accusation.

3. However, it is difficult to accept such a determination by the lower court for the following reasons.

A. The record reveals the following facts.

1) On June 2, 2014, the accusation submitted by the Defendant to an investigative agency around June 2, 2014, stated, “I want to punish the Defendant, who is the Defendant, on May 26, 201, in the vicinity of the alley of △△-dong, Seoul, △△-dong, △△-dong, I forced the Nonindicted Party to take the Defendant’s hand by force, spoking, and spoke the Defendant’s hand.”

2) On June 3, 2014, the day following the day on which the above complaint was submitted, the Defendant appeared at the Seoul △△△ Police Station Seo-top center for victims of sexual assault, and specified the place where the injury was inflicted as “alley where the house left back from the front middle of the time to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the right to the

Then, the Defendant stated that the police officer’s inquiry into the circumstances leading up to the damage, and that “I am at night 10:30 minutes from the drinking house and walked to get a taxi, and the Nonindicted Party saw that I am and am to sit on the alleyway, and that I am to the Defendant, and that I am to sit, and that I am to sit and pos down by getting the Defendant’s arms, and that I am to come up on the alley, and that I am to go up. I am to go up. I am to go up at the place where I am to go back. I am to go back. I am to go back from the house.”

3) The investigation of indecent act by compulsion against the Nonindicted Party was conducted on May 26, 2014, focusing on whether the Nonindicted Party committed indecent act by compulsion, such as the Defendant’s frighting of convenience stores along with the Defendant, and the time before the Nonindicted Party gets on and off his cab, and whether the Nonindicted Party frighted on the alleyway when she was seated on the alley.

On February 23, 2015, at the time when the non-prosecution disposition was issued by the non-indicted on the charge of the non-prosecution of the charges, the facts of the charges on the written decision on the non-prosecution of the charges were stated as follows: “On May 26, 2014, the non-indicted saw the lower part of the defendant, kiscing him into the kis, kiscing him, and kiscing him into the ki

4) On the other hand, the Nonindicted Party sent a text message to the Defendant on May 27, 201, on the day of the instant case, stating that “All anticipateds are expected to come well and see it well, and see it well, if she is see, e.g., see., concern,” on May 27, 2014.

5) At the time of filing a complaint against the Defendant for the crime of false accusation, the Nonindicted Party’s agent asserted that the Defendant’s complaint against indecent act by compulsion was false to the effect that there was no time gap between the time when the Nonindicted Party and the Defendant came from the convenience store and the time they got on and out of each taxi.

However, the Nonindicted Party testified to the effect that, from the court of first instance of this case, there was about about 10 minutes of time from the convenience store to the string of the taxi, and that the Nonindicted Party did not accurately memory before and after the string of the convenience store, but had been seated in the event of the string of the Defendant before the string of the taxi.

6) In addition, the Nonindicted Party asserted to the effect that, at the time of filing a complaint against the Defendant for the crime of false accusation, the Nonindicted Party, even before the time when the Defendant asserts that he was forced to commit indecent act by compulsion (before he was forced to take advantage of the convenience store and take a cab from May 26, 2014, the day of the instant case) he led the Defendant to their mutual appraisal three times.

However, in the first instance court of this case, the Nonindicted Party testified to the effect that his memory is not clear, or that it is different from the previous argument that the complainant made by his agent, at any time, place, and several times prior to the time when the Defendant asserts that indecent act by compulsion was committed by the Defendant.

B. According to the aforementioned facts, there is a lot of room to view that, of the facts charged in this case, the Nonindicted Party committed an indecent act in a manner that he/she would not satisfy the Defendant’s satisfy by seating around 19:00 on May 26, 2014, or in a manner that he/she would not satisfy the Defendant’s satisfy by drinking house at around 2:30 on the same day, or that the Defendant committed an indecent act in a manner that she satisfys together with the Defendant and satisfys at a drinking house at around 2:30 on the same day.

Therefore, the accusation that the Defendant was forced by indecent act by force from the Nonindicted Party, at the time, who was the Nonindicted Party at the workplace, is limited to the Defendant’s indecent act by force by force by force, on the same day of the instant case, when the Defendant her drinking together with the Nonindicted Party, and her drinking house at around 23:00. However, the convenience store was followed, and thereafter, the Nonindicted Party discovered a sofacined on the alleyway during the time period until her cab was on the alley, and the Nonindicted Party she was her seated and her seated.

C. The crime of indecent act by compulsion includes not only the case where an indecent act is committed after the other party makes it difficult to resist by means of assault or intimidation, but also so-called indecent act in which the act of assault itself is recognized as an indecent act. In this case, insofar as the use of force against the other party’s will is not necessarily required to suppress the other party’s intention, and so long as there is the exercise of force against the other party’s will, regardless of its force (see, e.g., Supreme Court Decision 2001Do2417, Apr. 26, 2002). Therefore, it can be seen that the defendant’s complaint details specified as above, namely, that the non-indicted committed an indecent act in conformity with the other party’s own entrance into the defendant. On the day of the instant case, the fact that the non-indicted was dancing with the defendant is also recognized to be consistent from the first instance court since he was accused of the crime.

The circumstances revealed by the lower court as the grounds for conviction are difficult to be deemed appropriate as the grounds for supporting that the Defendant’s accusation was objectively false. This is because it is not directly related to whether the Defendant was subjected to sexual assault from the Nonindicted Party on the first-come-served basis in order to determine whether there was another physical contact with the Nonindicted Party, such as taking a hand from the Nonindicted Party before the Defendant was faced with dancing, or the Nonindicted Party’s exercise of force or speech of intimidation was made, and whether the Defendant requested the Nonindicted Party to help the Nonindicted Party feel fear immediately after the indecent act was committed.

D. Furthermore, even if the Defendant accepted a certain level of physical contact on the day of the instant case, the Defendant, as the subject of physical freedom and right to self-determination, can reverse his consent at any time and at any time, and has the freedom to refuse physical contact beyond the scope of his expected or consented. As such, it is difficult to recognize that there was a certain degree of physical contact between the Nonindicted Party and the Nonindicted Party before the Defendant committed an indecent act on the part of the Defendant’s assertion, and it is difficult to recognize that the Defendant consented to or approved the act of dancing, etc.

E. In addition, the text message sent by the Nonindicted Party to the Defendant on the day of the instant case may be interpreted as a variety of concepts. However, it is difficult to readily conclude that the Defendant was guilty of indecent act against objective truth by committing an indecent act against the Nonindicted Party in the first instance court, even though the Nonindicted Party’s assertion that the Nonindicted Party expressed the Defendant through his/her complainant’s agent in the process of filing a complaint against the Defendant for the crime of false accusation and the testimony in the first instance court of this case is different from that of the Nonindicted Party. On the other hand, the circumstance that the lower court

F. Nevertheless, the lower court convicted the Defendant of the instant facts charged solely on the grounds stated in its reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on the crime of false accusation, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)