[1] The meaning of "Disciplinary Action" and "public office or public official" among the elements of the crime of false accusation

[2] Whether a disciplinary action against an attorney-at-law is included in the "Disciplinary Action" under Article 156 of the Criminal Act (affirmative), and whether the head of a local bar association having the right to apply for the commencement of such disciplinary action is included in the "public office or public official" under the same Article (affirmative)

[3] In a case where the defendant submitted a false statement to the Seoul Local Bar Association for the purpose of having a victim who is an attorney-at-law be subject to disciplinary action, the case affirming the judgment below holding that

[1] Article 156 of the Criminal Act provides that a person who reports false facts to a public office or a public official shall be punished for the purpose of having a person subject to criminal punishment or disciplinary action. The term “Disciplinary action” refers to a punishment imposed for maintaining order by resorting to special power relations under public law. In addition, “public office or public official” refers to a person who has authority to request disciplinary action or disciplinary action, and its supervisory agency or its member.

[2] According to Articles 92, 95, 96, and 100 of the former Attorney-at-Law Act (amended by Act No. 8991 of Mar. 28, 2008; hereinafter "former Attorney-at-Law Act"), disciplinary action against a lawyer is finally decided by the Attorney Disciplinary Committee of the Ministry of Justice through the Korean Bar Association's Disciplinary Committee, and is dissatisfied therewith, administrative litigation can be conducted; Articles 93, 94, and 101-2 of the former Attorney-at-Law Act include disciplinary action against a public office or a local bar association under Article 15 of the former Criminal Act upon the participation of two judges and two public prosecutors and two public prosecutors to form the Korean Bar Association's Disciplinary Committee or the Ministry of Justice's Disciplinary Committee; the delivery or change of documents, and the oath and benefit of a witness and appraiser shall be governed by the provisions of the Criminal Procedure Act and the Criminal Procedure Costs Act; the preparation of the above procedure shall be included in disciplinary action under Article 96 of the former Attorney-at-Law Act.

[3] The case affirming the judgment below which recognized the crime of false accusation in case where the defendant submitted to the Seoul Local Bar Association a false petition with the head of the said Bar Association for the purpose of having a victim who is an attorney-at-law be subject to disciplinary action

[1] Article 156 of the Criminal Act / [2] Article 156 of the Criminal Act; Articles 92, 93, 94, 95, 96, 97-2, 100, and 101-2 of the former Attorney-at-Law Act (amended by Act No. 8991 of March 28, 2008) / [3] Article 156 of the Criminal Act; Article 308 of the Criminal Procedure Act

[1] Supreme Court Decision 72Do1136 delivered on January 16, 1973

Defendant

Defendant

Seoul Northern District Court Decision 2010No59 decided July 21, 2010

The appeal is dismissed.

The grounds of appeal are examined.

Article 156 of the Criminal Act provides that a person who reports false facts to a public office or a public official shall be punished for the purpose of having a person subject to criminal punishment or disciplinary disposition. The term “Disciplinary action” refers to a punishment imposed for maintaining order by resorting to a special power relationship under public law. In addition, “public office or public official” refers to a person who has an authority to request the exercise of authority to take disciplinary action or disciplinary action and a supervisory agency or a member thereof.

According to Articles 92, 95, 96, and 100 of the former Attorney-at-Law Act (amended by Act No. 8991 of March 28, 2008; hereinafter referred to as the "former Attorney-at-Law Act"), where disciplinary action against a lawyer is finally determined by the Korean Bar Association through the Attorney Disciplinary Committee of the Ministry of Justice and is dissatisfied therewith, administrative litigation may be conducted; Articles 93, 94, and 101-2 of the former Attorney-at-Law Act shall be conducted by two judges and two public prosecutors as members to form the Korean Bar Association or the Ministry of Justice Disciplinary Committee of the Korean Bar Association; the provisions of the Criminal Procedure Act and the Criminal Procedure Costs Act shall apply mutatis mutandis to matters concerning delivery of documents, designation or change of date, and oath and pay of a witness and appraiser; and the preparation of the above procedure shall include disciplinary action under Article 15 of the former Attorney-at-Law Act or a local bar association with authority to take disciplinary action as prescribed by Article 16 of the Criminal Act.

In full view of the circumstances indicated in its reasoning, the lower court maintained the first instance judgment conviction on the ground that the Defendant submitted the instant petition to the Seoul Local Bar Association for the purpose of having the victim, who is an attorney-at-law, be subject

In light of the above legal principles and records, the above judgment of the court below is just and acceptable in accordance with the reasonable free evaluation of the judge of the fact-finding court, and there is no error of law such as violation of the rules of evidence and misunderstanding of the legal principles as to the crime of false accusation, etc.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)