Whether the establishment of an offense of false accusation can be recognized solely on the basis of the fact that the truth of the reported fact cannot be recognized (negative), and whether the same legal doctrine applies to a violation of Article 4 of the Control of Illegal Check Act (affirmative)

Since 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, there should be positive proof as to the fact that the reported fact goes against the objective truth, and the truth of the reported fact cannot be recognized solely on the sole basis of the fact that the reported fact goes against the objective truth, and the establishment of the crime of false accusation cannot be recognized by concluding that the reported fact is a false fact going against the objective truth. The same applies to the crime of violation of Article 4 of the Regulation of Illegal Check Act established in a case where

Article 156 of the Criminal Act, Article 4 of the Control of Illegal Check Act, Article 308 of the Criminal Procedure Act

Supreme Court Decision 96Do599 Decided February 24, 1998 (Gong1998Sang, 934) Supreme Court Decision 2003Do5114 Decided January 27, 2004 (Gong2004Sang, 416) Supreme Court Decision 2007Do6406 Decided October 11, 2007

Defendant

Defendant and Prosecutor

Law Firm Gwangju (Attorneys Lee Jong-soo et al., Counsel for defendant-appellant)

Suwon District Court Decision 2010No2332 decided October 26, 2011

Of the convictions of the lower judgment, the part on the charge of violation of the Control of Illegal Check Act and the accusation on April 9, 2009 is reversed, and that part of the case is remanded to the Suwon District Court Panel Division. The remaining appeals by the Defendant and the prosecutor are all dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. Violation of each Illegal Check Control Act and the point of non-appeal on April 9, 2009

1) In a criminal trial, the conviction of guilt ought to be based on evidence of probative value, which leads a judge to have the conviction that the facts charged are true beyond a reasonable doubt. Therefore, in a case where the prosecutor’s proof fails to sufficiently reach the extent that such conviction would lead to a judge’s conviction, the determination should be based on the defendant’s benefit even if there is a suspicion of guilt.

Meanwhile, 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 reported fact is false in violation of the objective truth. The mere fact that the authenticity of reported fact cannot be recognized is that the reported fact goes against the objective truth, and the establishment of the crime of false accusation cannot be acknowledged by readily concluding that the reported fact goes against the objective truth (see, e.g., Supreme Court Decisions 96Do599, Feb. 24, 1998; 2003Do5114, Jan. 27, 2004). The same applies to a violation of Article 4 of the Illegal Check Control Act, which is established when a false report is filed with a financial institution with the intent to escape from the payment of check amount or the disposition of suspension of transaction.

2) Of the facts charged of this case, the Defendant, as the representative director of Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) and Nonindicted Co. 2, who was in charge of Nonindicted Co. 3’s funds, had Nonindicted Co. 3 receive a discount of KRW 30 million on May 11, 2006, KRW 168,400, and KRW 100,000 per share of Nonindicted Co. 1, which was due for the payment of KRW 406, KRW 100,000, KRW 100, KRW 100, KRW 100, KRW 40,000, KRW 30,000, KRW 20,000, KRW 9,000, KRW 20,000, KRW 30,000, KRW 9,000, KRW 40,000, KRW 9,000, KRW 30,00,00.

The lower court convicted Nonindicted 2 of each charges on the ground that it is reasonable to deem that, in light of the circumstances acknowledged by the evidence adopted, Nonindicted 3 was aware of the fact that the Defendant issued each of the above units of shares to Nonindicted 3, but reported false loss with the intention to escape from payment, and Nonindicted 2 submitted a false complaint with the intent to have Nonindicted 2 punished by criminal punishment.

3) However, the lower court’s determination is difficult to accept in light of the following circumstances revealed by the legal doctrine as seen earlier and the records.

A) As to the developments of the instant case, the Defendant consistently asserted as follows from the time of the accusation. In other words, when the Defendant borrowed funds from Nonindicted Company 1 rapidly, the Defendant issued the check in the name of Nonindicted Company 1 in order to check, but it was thought that Nonindicted Company 2, who was in charge of the early financing business at the end of 2005 through 2006, instructed Nonindicted Company 2 to collect all of the check units, and recovered all of the check units, including one blank check, and thereafter, the Defendant did not issue the check number or allow Nonindicted Company 2 to issue the check number. On January 2009, Nonindicted Company 3 had asserted that Nonindicted Company 1’s claim against Nonindicted Company 1, and had Nonindicted Company 3 possess the degree of KRW 10,000,000,000 from the end of February 2, 2009, it was necessary that Nonindicted Company 3 had already received the check of KRW 260,000,00 from Nonindicted Company 1 and received the check of KRW 3.

B) However, at the investigative agency and the court of first instance, around 2007 or around 2008, Non-Indicted 2 stated that there was an entry that he returned to the defendant six copies of the check including a blank check held by the defendant at the direction of the defendant. Non-Indicted 3 stated in the court of first instance that there was an entry in writing that he cannot give money under the circumstance that he was informed of whether he was directly issued by the defendant after being subject to payment refusal at the bank. Meanwhile, Non-Indicted 4, who was an employee of Non-Indicted 1, in the investigative agency and the court of original instance, had a person holding the degree of KRW 100 million under the name of Non-Indicted 1, who was issued by Non-Indicted 2 from the defendant, and was ordered to postpone payment date, and that the defendant was unable to make a statement to the effect that he was issued with Non-Indicted 3 or 200 million won on February 27, 2009, and that he did not make a statement to the effect that he was issued with the above two billion won bill.

In addition, the statements made by Non-Indicted 2 and 3 on the timing and background of the issuance of the check of the number of units and the amount of debts at the time of the above Chapter 2 are not consistent from the police to the court of first instance, and they are reversed independently, as well as the statements made by two persons are contradictory with regard to the timing of the issuance of the check of KRW 100 million, whether the issue date at the time of the issuance is blank, and in particular, any of the two persons' statements is inconsistent with the facts charged that "the 100 million won check was issued on August 206."

On the other hand, around 2005, the Defendant stated that the face value column of a check and a promissory note was written as a sign, and that the Defendant printed the face value column with machinery from the purchase of machinery around 2007. Nonindicted 2 also stated that the check was issued after May 2006 at the court of first instance, with the face value of KRW 300 million (Evidence 970 pages) which was issued to Nonindicted 5, and that the amount was written to the effect that there was no machine capable of printing the date and amount on the check or promissory note at the time. However, since each of the instant check was printed in a machine with a face value, each of the instant check was issued after 2007. Accordingly, according to the above statement, the number of units of each of the instant check was issued after 207,000 won. Accordingly, the Defendant’s statement that each of the above statements was issued on May 11, 2006, the Defendant’s statement that the check was issued on KRW 300 million and KRW 2006.3 billion.

In addition, although Non-Indicted 2 asserts that the defendant's consent was obtained at the time of the issuance of each of the above units of shares, even according to his statement, Non-Indicted 2 issued a promissory note or a check of shares with almost the number of the non-Indicted 1's seal impression in his custody, even if according to his own statement, he made a verbal report to the defendant when a promissory note is discounted or borrowed funds as security, and did not obtain regular approval and did not adjust the two copies of the above units of shares in the company's management ledger or record the details of repayment of principal and interest separately, and there is no objective data that can be found that the defendant's consent was accepted at the time of issuance by Non-Indicted 3.

C) Meanwhile, around November 2, 2008, Nonindicted 2 prepared a certificate of assignment of a promissory note in the name of Nonindicted Company 1 with the content that “a total of KRW 65 million out of the claim for construction price of Nonindicted Company 1 is transferred to Nonindicted Company 6 (hereinafter “Nonindicted Company 6”),” without the Defendant’s permission. On December 11, 2008, Nonindicted 2 extended the payment date of the promissory note in the name of Nonindicted Company 1 on February 2, 2009, and without any doubt, delegated the above certificate of assignment of a claim to Nonindicted Company 6 to Nonindicted 2, “a person who delegates all the authority over the claims and obligations with Nonindicted Company 6” (the personal seal impression of the Defendant) and prepared a letter of delegation in the name of Nonindicted Company 1 in the name of Nonindicted Company 6 to deliver it to Nonindicted Company 7’s representative director, and the lower court also prepared a false statement in the name of Nonindicted Company 2 and Nonindicted Company 2 for the purpose of criminal punishment and submitting it to Nonindicted Company 27’s accusation.

D) Furthermore, as to this part of the facts charged, even if Nonindicted 2 did not know in advance that Nonindicted 3 was issued the above part of the facts charged, the prosecutor explained about the circumstance that Nonindicted 3 possessed the above part of the number of units, through Nonindicted 2 and Nonindicted 3 around March 2009, Nonindicted 2 borrowed money from Nonindicted 3 and delivered the above part of the number of units to Nonindicted 3 for the financing of Nonindicted Company 1, thereby becoming aware that Nonindicted 3 was legitimately acquired and possessed by Nonindicted 3. Accordingly, it constitutes a crime of false accusation. However, the above argument is inconsistent with the facts charged in the violation of the Control of Illegal Check Act, and the defendant does not seem to have sufficient evidence to find out all of the above facts as to the circumstance that Nonindicted 2 and Nonindicted 3 possessed the above part of the number of units.

4) If so, it is difficult to readily conclude that the contents reported by the Defendant to the investigation agency and the financial institution are false, without any reasonable doubt, solely based on the statements made by Nonindicted 2 and 3 and other evidence submitted by the prosecutor, which are not reliable as above.

Nevertheless, the court below found the defendant guilty of this part of the charges in violation of logical and empirical rules, thereby misunderstanding facts beyond the scope and limit of reasonable free evaluation of evidence, or misunderstanding the legal principles on the establishment of a crime of false accusation and a crime of violation of Article 4 of the Control of Illegal Check Act, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

B. Violation of the Labor Standards Act

Meanwhile, the Defendant filed an appeal against the violation of the Labor Standards Act among the judgment below, but the appellate brief did not state any grounds for appeal and did not state any grounds for objection against the appeal.

2. As to the Prosecutor’s Grounds of Appeal

Examining the reasoning of the judgment below in light of the records, the court below reversed the judgment of the court of first instance which found the defendant guilty and found the defendant not guilty on February 25, 2009 among the facts charged of this case on the ground that there is no evidence of crime, and there is no error of law of free evaluation of evidence in violation of logical and empirical rules.

3. Conclusion

Therefore, among the convictions of the lower judgment, the part on the charge of violation of the Control of Illegal Check Act and the accusation on April 9, 2009 is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining appeals by the Defendant and the Prosecutor are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)