[1] Whether the crime of false accusation is established in a case where a part of the false information contained in the report is merely an exaggeration of the fact (negative)

[2] In a case where a complainant files a complaint against a borrower who does not repay money in a crime of fraud with the intent to repay money and his/her ability to deceive him/her, whether the “use of money borrowed” constitutes a false report in the crime of false accusation with the intention to use money or falsely report it differently from the fact (negative)

[3] The case holding that the judgment below erred by misapprehending legal principles on the ground that it is difficult to view the Defendant as a "report of false facts" in the crime of false accusation on the ground that the Defendant filed a complaint against a borrower who does not repay money in money, concealed the fact that the Defendant borrowed money for gambling by false entries in the lending place, and used the lending place to the Defendant et al.

[1] Article 156 of the Criminal Act / [2] Articles 156 and 347 (1) of the Criminal Act / [3] Articles 156 and 347 (1) of the Criminal Act

[1] [2] Supreme Court Decision 2004Do2212 Decided December 9, 2004 / [1] Supreme Court Decision 96Do771 Decided May 31, 1996 (Gong1996Ha, 2093), Supreme Court Decision 2002Do5939 Decided January 24, 2003 (Gong2003Sang, 754), Supreme Court Decision 2003Do7178 Decided January 16, 2004 (Gong2004Sang, 373), Supreme Court Decision 2010Do2745 Decided April 29, 2010

Defendant

Defendant

Attorney Kang Jin-soo et al.

Ulsan District Court Decision 2010No518 decided October 15, 2010

The judgment of the court below is reversed, and the case is remanded to the Ulsan District Court Panel Division.

We examine the grounds of appeal.

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 punishment or disciplinary punishment. Even if a part of the reported facts is false, it does not constitute a crime of false accusation if the reported facts are merely exaggerated (see, e.g., Supreme Court Decisions 96Do771, May 31, 1996; 2002Do5939, Jan. 24, 2003). However, when a complainant files a complaint against a lender who does not repay the borrowed money in fraud, he/she did not lend money if he/she stated the original purpose of the borrowed money. It would affect whether the actual purpose of the borrowed money was established or not, and thus, if the complainant stated that he/she lent money to the wind, the actual purpose of the borrowed money would have an important effect on the establishment of the crime of false accusation, and thus, it does not constitute a crime of false accusation, regardless of its capacity or intent to report the borrowed money.

The summary of the facts charged of this case is that the defendant lent 30 million won to the victim non-indicted 3 and 4 through the Hanwon Islands around July 8, 2009 through the non-indicted 1 and 2, and agreed to repay each of the above loans within one week with a chip for gambling use of each of 3 million won in advance interest. However, the defendant was unable to receive each of the above loans from the victims, and he was willing to file a complaint with the head of the Seoul Police Station around October 9, 2009 by submitting a false statement to the victim that "the non-indicted 3 and the non-indicted 4, the defendant, around July 8, 2009, borrowed 30 million won each of the above loans from the victims."

In light of the adopted evidence, the court below found the defendant guilty on July 8, 200, that the defendant lent KRW 30 million to Nonindicted 3 and Nonindicted 4, the defendant, through Nonindicted 1 and 2, respectively, with the knowledge that he used the borrowed money for gambling purposes; Nonindicted 3 and Nonindicted 4, who is the defendant, exchanged the entire borrowed money to the chip for gambling purposes and deliver it to Nonindicted 1 as the interest, with the gambling chip equivalent to KRW 3 million; the defendant 1 and boomed it with Nonindicted 1; on October 9, 2009, the defendant concealed the fact that he lent the money for gambling with the capacity to borrow the money for financing; on the basis of the fact that he borrowed the money for financing, the defendant could not be punished for the loan of KRW 30 million to the defendant, who appears to have borrowed the money for financing purposes; on the other hand, the court below found the defendant guilty of the above fact that he borrowed the money for financing purposes to the police 30 million won, respectively.

However, in this case, the defendant's respective contents of the defendant's complaint are different in punishment for fraud, and there is no fact that the defendant's plaintiff has made a loan to the wind, regardless of the intent to repay or ability to borrow money. In light of the above contents of the complaint, it may be recognized whether the defendant's plaintiff has borrowed money without the intent or ability to repay other materials, regardless of the purpose of the loan. Thus, it is difficult to view that the defendant has made a false report on an important part to the extent that it affects the establishment of the crime of fraud solely on the ground that the defendant stated the location of the loan in the complaint and stated the fact that the defendant borrowed money to the defendant's plaintiff for gambling with the intention to lend it to the money for gambling.

Nevertheless, on the grounds as seen earlier, the lower court determined that the false entry of the place of lending money in each of the instant accusation constitutes a false accusation of an important part to the extent that it affects the establishment of criminal facts. In so doing, the lower court erred by misapprehending the legal doctrine on false accusation, thereby affecting the conclusion of the judgment

The ground of appeal pointing this out is with merit.

Therefore, 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 Yang Chang-soo (Presiding Justice)