[1] The scope of recognition of "for the purpose of having a criminal or disciplinary punishment" in the crime of false accusation, and whether a false accusation is recognized as the above purpose to a complainant who submitted a written complaint to an investigative agency (affirmative)

[2] In a case where the defendant submitted a false statement to the investigative agency stating that "A submitted a false statement to the effect that "A was forged or falsified in the course of trial of a civil case because he/she sold a forged or falsified certificate," but only stated that the certificate was forged when the statement to supplement the complaint was made, the case holding that the judgment below which acquitted the defendant on the part not guilty of the forgery or use of the agreement is erroneous in the misapprehension of legal principles as to "report" for the crime of false accusation

[1] The crime of false accusation is established when a person reports false facts to a public office or a public official for the purpose of having a criminal or disciplinary punishment imposed upon him/her, and in filing a false report, it is sufficient for another person to recognize that he/she would be subject to criminal or disciplinary punishment for the purpose of having a criminal or disciplinary punishment imposed upon him/her, and it does not require that the result would be produced. Thus, if the complainant submitted a written complaint to an investigation agency, such perception should be deemed to

[2] The case holding that the judgment below which acquitted the defendant of this part without examining whether the content of this part is "false fact" or not, in case where the defendant submitted a false statement stating that "A submitted a false statement to the investigative agency to the effect that "A was punished because it was a forged document in the process of trial of a civil case," but only stated that the confirmation document was forged at the time of filling for the accusation, the case held that the judgment below which acquitted the defendant of this part without examining whether the content of this part is "false fact" or not, is erroneous in the misapprehension of legal principles as to "report"

[1] Article 156 of the Criminal Act / [2] Article 156 of the Criminal Act

[1] Supreme Court Decision 90Do2601 delivered on May 10, 1991 (Gong1991, 1676) Supreme Court Decision 2005Do2712 Delivered on September 30, 2005 (Gong2005Ha, 1753) Supreme Court Decision 2006Do3631 Delivered on August 25, 2006

Defendant

Defendant and Prosecutor

Law Firm Mapsung, Attorney Kim Young-young

Seoul Central District Court Decision 2011No2438 Decided February 8, 2012

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

The grounds of appeal are examined.

1. Judgment on the Defendant’s ground of appeal

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, it is justifiable to find the Defendant guilty of this part of the facts charged on the ground that the content of the Defendant’s accusation to the effect that “the Nonparty exercised the instant confirmation document forged” constituted false facts contrary to objective truth. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding the degree of proof in a criminal trial, or by exceeding the bounds of the principle

2. Judgment on the prosecutor's ground of appeal

On October 208, the court below found the Defendant guilty of this part of the facts charged on the following grounds: (a) the Defendant submitted a complaint stating the false fact that “the Nonparty submitted the forged agreement to the Seoul Central District Court 2007Gahap97254 in the trial process of the Seoul Central District Court Decision 2007Gahap97254, which caused the use of the said investigation document to be punished; and (b) the Defendant submitted a complaint to the effect that “the Nonparty had exercised the certificate of this case, the stock sales contract, which was forged during the trial process of the above trial; and (c) the Defendant stated that “the Nonparty did not affix a seal to the instant agreement; and (d) there was a forgery or use of the said agreement; and (d) only stated that the instant confirmation document, the stock sales contract, or the instant agreement was forged only when the statement to supplement the complaint was made; and (e) there was no other evidence to prove this part of the facts charged, and thus, there was no evidence to prove it.

However, such determination by the court below is difficult to accept for the following reasons.

The crime of false accusation is established when a false report is filed to a public office or a public official for the purpose of having another person receive criminal or disciplinary punishment, and in the crime of false accusation, there is sufficient awareness that other persons would be subject to criminal or disciplinary punishment for the purpose of having a person receive criminal or disciplinary punishment, and it does not require that the other person would be subject to criminal or disciplinary punishment for the purpose of making a false report. Thus, if the complainant has submitted a written complaint to an investigation agency, such perception should be deemed to have occurred (see Supreme Court Decisions 90Do2601, May 10, 1991; 2005Do2712, Sept. 30, 2005).

According to the facts acknowledged by the court below, since the written complaint of this case submitted by the defendant stated "the time to decide whether to forge or use the instant written agreement has no seal," it shall be deemed to be "the defendant reported false facts" in this part, and it shall not be deemed to be different even if the defendant did not mention at all about the instant written agreement at the time when the investigative agency made a statement to supplement the complaint.

If so, the lower court should have deliberated on whether the content of this part is “false fact” or not, and should have judged whether the crime of false accusation with respect to this part is committed.

Nevertheless, the court below determined that this part of the facts charged constitute a case where there is no proof of crime. The court below erred by misapprehending the legal principles on “report” in the crime of false accusation, which led to the failure to exhaust all necessary deliberations, and thereby adversely affected the judgment. The prosecutor’s ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the non-guilty portion of the judgment of the court below should be reversed, and this part of the judgment of the court below constitutes concurrent crimes under the former part of Article 37 of the Criminal Act with the guilty portion. Therefore, the whole judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It

Justices Kim Chang-suk (Presiding Justice)